Petition for Writ of Certiorari — Vladimir Vladimirovic Brik, Petitioner v. United States

No.

23-5635

m

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2022

rtTus“~

*

SEP - 6 2022

VLADIMIR VLADIMIROVICH BRIK,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

*

On Petition for Writ of Certiorari

To the United States Court of Appeals

For the Eighth Circuit

*

PETITION FOR WRIT OF CERTIORARI

*

Vladimir V. Brik

Fed. Reg. #18466-041

FCI Elkton

P.0. Box 10

Lisbon, OH 44432

Petitioner/pro-se

theclerk

I

QUESTION PRESENTED FOR REVIEW

Are

material

second-in-time

Brady

violations

petitions

"second

raising

or

seccessive"

meaning of §2255(h)'s gatekeeping provision?

(i)

newly

discovered

within

the

PARTIES TO THE PROCEEDINGS

Vladimir Vladimirovich Brik #18466-041

FCI ELkton

P.0. Box 10

Lisbon, OH 44432

Petitioner,

Pro-se representation for Petitioner

Attorney for Respondent,

United States,

Ms. Katherine Thornton Buzicky

U.S. ATTORNEY'S OFFICE

District of Minnesota

600 U.S. Courthouse

300 S. Fourth Street

Minneapolis, MN 55415

RELATED CASES

* United States v. Brik, No. 15-cr-78(03j) , U.S. District Court for

v •'* '

the District of

[Doc. No. 766].

Minnesota.

Judgment

entered April

14,

2022.

* United States v. Brik, App. No. 22-1882, U.S. Court of Appeals

for the Eighth Circuit. Judgment entered May 27, 2022. (8th Cir.

J. [5159542-2] [22-1882]

‘

* United States v. Brik, App. No. 22-1882, U.S. Court of Appeals

for the Eighth Circuit. Rehearing Judgment entered July 8, 2022.

(8th Cir. J. [5166661-2] [22-1882].)

(ii)

TABLE OF CONTENTS

PAGE(S)

CONTENTS

QUESTION PRESENTED FOR REVIEW

i

PARTIES TO PROCEEDINGS AND RELATED CASES

ii

INDEX OF AUTHORITIES

v

CITATIONS OF OPINIONS AND ORDER IN CASE

1

JURISDICTIONAL STATEMENT

2

CONSTITUTIONAL PROVISION AND STATUTES INVOLVED

3

STATEMENT OF THE CASE AT HAND

4

COURSE OF PROCEEDINGS IN THE SECOND-IN-TIME §2255

CASE BEFORE THIS COURT....................................................

5

EXISTENCE OF JURISDICTION BELOW

6

REASON FOR GRANTING THE WRIT

6

THE COURT OF APPEALS HAS DECIDED A FEDERAL QUESTION IN DIRECT

CONFLICT WITH THE APPLICABLE DECISION OF THIS COURT.................

6

ARGUMENT AMPLIFYING REASONS FOR WRIT

7

I. THE COURT OF APPEALS ERRED IN AFFIRMING THE DISMISSAL ON THE

BASIS THAT BRIK'S MATERIAL BRADY CLAIM IS "SECOND OR

SUCCESSIVE" AND SUBJECTED TO §2255(h):.. ................................. ..

7

CONCLUSION

22

PROOF OF SERVICE

23

INDEX TO APPENDICES

APPENDIX "A" - Brik's application for Certificate of Appealability

denied by the Eighth Circuit Court of Appeals

( i i i.)

INDEX TO APPENDICES (continued)

APPENDIX "BM - District Court's dismissal of Brik's 60(b11 as being

"second

or

successive"

and

requiring

pre­

authorization from the Eighth Circuit

APPENDIX "C" - Eighth Circuit Court of Appeals denial for enbanc

rehearing and panel rehearing

APPENDIX "D" - Materiality of Dr. Berrier's evidence

(ivd>

INDEX OF AUTHORITIES

JURISPRUDENCE

PAGE(S)

Brady v. Maryland, 373 U.S. 83, 87,

_

83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ...................

13, 15

Castro v. United States, 540 U.S. 375, 380-81,

124 S.Ct. 786, 157 L.Ed.2d 778 (2003)..................

11

Delaware v. Van Arsdall, 475 U.S. 673, 681,

106 S.Ct. 1431, 89 L. Ed. 2d 335 (1986).,...............

15

Ford v. Wainwright, 477 U.S. 399,

106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)................

9

Long v. Hooks, 972 F.3d 442,

■2020 U.S. App. LEXIS 27138 (14th Cir. Aug. 24, 2020)(Enbanc).... 21

Magwood v. Patterson, 561 U.S. 320, 345,

130 S.Ct. 2788, 177 L.Ed.2d 592 (2010)..................

12, 15, 19

McCIesky v. Zant, 499 U.S. 467, 470,

111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)..................

11, 16, 19

Panetti v. Quarterman, 551 U.S 930, 943,

127 S.Ct. 2842, 168 L.Ed.2d 662 (2007)..................

7, 8, 14, 19

Sawyer v. Whitley, 505 U.S. 333, 338,

112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)............. .. .

19

Scott v. United States, 890 F.3d 1239, 1243-44,

(11th Cir. 2018)............... .................................................

21

Slack v. McDaniel, 529 U.S. 473, 486,

120 S.Ct. 1595, 146 L.Ed.2d 542 (12000)..................

8

Strickler v. Greene, 527 U.S. 263, 280,

119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)..................

13, 20

Williams v. Taylor, 529 U.S. 420, 437,

120 S.Ct. 1479, 146 L.Ed.2d 435 (2000)..................

17

< v)

___<*>____

INDEX OF AUTHORITIES (continued)

United States Code

21 U.S.C.

21 U.S.C.

21 U.S.C.

21 U.S.C.

21 U.S.C.

28 U.S.C.

28 U.S.C.

§84l(a)(l)

§84l(b)(1)(C)

§802(32)(A)

§813

§846

§2255(h)(1)

§2244(b)(3)(B)

(vi)

Petitioner, Vladimir Vladimirovich Brik, pro-se, prays

that

this Honorable Court will issue a writ of certiorari to review the

judgment of the United States of Court of Appeals for the Eighth

2022.

entered in the above proceeding on July 8th

Circuit

JU

I.

CITATIONS

The original

States

District

7/12/16.

OF OPINIONS AND ORDERS IN CASE

judgment

Court

for

(See Plea Agmt.

sentenced

him

to

a

of conviction of Brik in the United

term

the

District

[Doc. No.

of

of

Minnesota

was

on

375]). On 6/27/17, the Court

imprisonment

of

118-months.

(See

Sentencing J. [Doc. No. 548]; Am. Sentencing J. [Doc. No. 554]).

The original judgment of conviction of Brik was appealed to

the United States Court of Appeals for the Eighth Circuit, which

affirmed the conviction and sentence. (See [Doc. No. 596]).

In April, 2019, Brik filed a Pro-se Motion to Vacate under 28

U.S.C.

§2255

(Doc.

No.

assistance of counsel.

624),

raising

Specifically,

claims

of

ineffective

he asserted that his trial

counsel was ineffective for the following reasons:

(1) providing

him inaccurate advice regarding the mens rea requirement under the

Analogue Act;

at

sentencing;

(2) failing to oppose a two-point upward adjustment

(3)failing

to

challenge

Defendant's proposed jury instructions;

the

Court's

and (4)

ruling

on

failing to show

him the entire Presentence Investigation Report ("PSR").

(Def.'s

§2255 Mot., Grounds 1-4). The Court denied Brik's motion on the

(1)

merits

and

denied

his

application

for

certificate

of

appealability, United States v. Brik, No. 15-78(SRN/BRT), 2019 WL

6037570

(D.Minn.

Nov.

14,

2019);

(Nov.

14,

2019 Order [Doc. No.

639]).

Brik appealed, and after review, the Eighth Circuit dismissed

his appeal, (8th Cir. §2255 J. [Doc. No. 649]).

On May 03, 2021, Petitioner filed his pro-se Motion Pursuant

to

Fed.R.Civ.P.

60(b)

to

repopen

his

§2255

discovered evidence ("Motion to Reopen").

Motion

(Def.'s Mot.

for

newly

to Reopen

[Doc. No . 746]) .

On 4/14/2022,

the District Court dismissed Brik's 60(b) as

being "second or successive" and requiring preauthorization from

the Eighth Circuit.

[Doc. No.

766]. Attached hereto as Appendix

"B".

On

5/27/2022,

Brik's

application

for

certificate

for

appealability was denied by the Eighth Circuit Court of Appeals.

(8th Cir.

J.

[5159542-2][22-1882] .)

Attached hereto as Appendix

"A".

On 7/08/2022, the Eighth Circuit Court of Appeals denied his

petition, for enbanc rehearing and panel rehearing.

(8th Cir.

J.

[5166661-2][22-1882].) Attached hereto as Appendix "C".

*

II.

JURISDICTIONAL STATEMENT

The judgment of

the United States Court of Appeals for the

Eighth Circuit was entered on July 8th

2022. The jurisdiction of

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

(2)

III.

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

1. The Fifth Amendment of the United States constitution provides:

"No person shall be... deprived of life, liberty, or property without due

process of law; nor shall private property be taken for public use,

without just compensation."

2. The statute under which Brik sought habeas corpus relief was 28

U.S.C. §2255, which states in pertinent part:

"A prisoner in custody under sentence of a court established by Act of

Cbngress claiming the right to be released upon the ground that the

sentence was imposed in violation of the Constitution or Laws of the

United States, or that the sentence was in excess of the maximum

authorized by law, or is otherwise subject to collateral attack, may

move the court which imposed the sentence to vacate, set aside, or

correct sentence."...

"Unless the motion and the files and records of the case conclusively

show that the prisoner is entitled to no relief, the court shall cause

notice to be served upon the United States attorney, grant a prompt

hearing thereon, determine the issues and make findings of fact and

conclusions of law with respect thereto. If the courts find that the

judgment was rendered without jurisdiction, or that the sentence imposed

was not authorized by law or otherwise open to collateral attack, or

that there has been such a denial or infringement of the constitutional

rights of the prisoner as to render the judgment vulnerable to

collateral attack, the court shall vacate and set aside the judgment

aside and shall discharge the prisoner or resentence him or grant a new

trial or correct the sentence as may appear appropriate."

3. The statute involved and under review is, 28 U.S.C. §2255(h),

which states:

(3)

"A second or successive motion must be certified as provided in section

2244 [28 U.S.C. §2244] by a panel of the appropriate court of appeals to

contain (1) Newly discovered evidence that, if proven and viewed in light

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

and convincing evidence that no reasonable factfinder would have found

the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. §2255(h)."

*

IV.

STATEMENT OF THE CASE AT HAND

On 3/17/15, Brik was indicted for Conspiracy to Distribute,

and Possess with

.

the

Intent

Analogues

AM-2201,

UR-144

2013,

violation

of

in

to Distribute Controlled

and

Title

XLR-11

21,

from March,

United

States

Substance

2011

to

Code,

late

Sections

- . 802(32)(A), 813, 841(a)(1), 841(b)(1)(C), and 846.

On 7/12/16, on the first day of trial, Brik pleaded guilty to

controlled

substance

analogue

distibution

and

money

laundering

conspiracy charges. (See Plea Agmt. [Doc. No. 375] Pg. l).

On

3/29/21,

Brik discovered for

the first

time,

through a

case from the Law Library at his instituiton, that the Government

withheld, and that his plea was unintelligently accepted without

knowledge

of,

Arthur Berrier,

material

a

exculpatory

DEA Chemist.

evidence

pertaining

to

Dr.

Attached hereto as Appendix "D"

for materiality of Dr. Berrier's evidence.

/V

(4)

V.

COURSE OF PROCEEDINGS IN THE SECOND-IN-TIME

2255 CASE BEFORE THIS COURT

On May 03,

Fed.R.Civ.P.

2021,

60(b)

Brik filed his Pro-se Motion Pursuant to

for newly discovered

§2255 Motion ("Motion to Reopen").

evidence

(Def.'s Mot.

to Reopen his

to Reopen [Doc.

No. 746].) Brik raised two claims in his Motion to Reopen (Id. at

1,

5-12.) He asserts that this guilty plea was not voluntary and

informed

because :

material evidence;

(1)

the

prosecution

withheld

exculpatory

and (2) his attorney was ineffective for not

investigating or disclosing to him the value of such exculpatory

evidence, (id.)

On June 21, 2021, Brik filed his Pro-se Motion to Supplement

the Record for Timeliness,

arguing that his Motion to Reopen was

timely filed. (Def.'s Mot. to Supplement [Doc. No. 748].)

The Government filed its response to Brik's Motion to Reopen

on December 28, 2021, arguing that Brik's Motion should be denied

because his motion, although stylized as a Rule 60(b) motion, is

more properly classified as an unauthorized second or successive

habeas petition.

has

(Govt.'s Resp.

not received permission

[Doc.

from

the

No.

762] at 5-6.) As Brik

Eighth Circuit

to

file

a

successive §2255 motion to vacate, the Government argued that the

Court lacked jurisdiction to hear his motion, (id. at 7.)

On

4/14/22,

the

District

Court

dismissed

Brik's

60(b)

as

being "second or successive" and requiring preauthorization from

the Eighth Circuit. [Doc. No. 766].

(5)

On 5/19/22, Brik timely filed a notice of appeal and a motion

for issuance of certificate of appealability. (8th Cir. [5159542]

[22-1882].)

On

5/27/22,

Brik's

application

for

certificate

of

appealability was denied by the Eighth Circuit Court of Appeals.

(8th Cir. J. [5159542-2] [22-1882].)

On

6/10/22,

and

rehearing

Brik

panel

timely

filed

for

Petition

rehearing.

(8th

Cir.

J.

for

[5166661-2]

enbanc

[22-

1882] . )

*

VI.

EXISTENCE OF JURISDICTION BELOW

Brik was indicted and convicted in the United States District

Court

for

the

District

Court

of

Minnesota,

for

controlled

substance analogue distribution and money laundering conspiracy

charges.

A Fed.R.Civ.P.

appropriately

made

in

60(b)

the

to Reopen his

convicting

court

§2255 Motion was

and

subsequently

denied. A timely appeal to the United States Court of Appeals for

the Circuit was filed.

*

VII.

REASON FOR GRANTING THE WRIT

THE COURT OF APPEALS HAS DECIDED A FEDERAL QUESTION IN DIRECT

CONFLICT WITH THE APPLICABLE DECISION OF THIS COURT.

(6)

The Eighth Circuit Panel Judgment denying a Certificate of

Appealability to the district court's dismissal of Brik's 60(b) to

Reopen his

§2255 motion holdingrthat, a material Brady claim is

"second

successive"

or

and

subjected

to

the

§2255(h)

gateway

requiring

pre-authorization.

Contrary

to

the

Eighth

Circuit

Court's

Brik's

holding,

second-in-time petition raising a newly

revealed Brady claim for withheld material exculpatory evidence is

not "second or successive" within the meaning of AEDPA. To hold

that his motion is subjected to the structures of §22i>5(h) is in

direct conflict with

Panetti v.

L.Ed.2d

the applicable decisions

Quarterman,

662

(2007).

551

This

U.S.

930,

944,

Court

should

of

this Court

127

S.Ct.

exercise

its

2842,

in

168

supervisor

powers over the lower courts and issue the writ.

Brik respectfully urges that the Circuit Court's decision is

erroneous

and

at

a

variance

with

this

Court's

decision

as

explained in the argument below.

*

VIII.

ARGUMENT AMPLIFYING REASONS FOR WRIT

I •

THE COURT OF APPEALS ERRED IN AFFIRMING THE DISMISSAL ON THE

BASIS THAT BRIK'S MATERIAL BRADY CLAIM IS "SECOND OR

SUCCESSIVE" AND SUBJECTED TO §2255(h).

Section

"second

.Under

or

2255(h)

successive"

section

brought

functions as

unless

2255(h)

they

motions

no

to

"second

identify

a

"gatekeeping provision"

vacate

or

under

AEDPA.

successive" motions

may be

either 5

brought

for

"(l)

newly

discovered

evidence that,) if proven and viewed in light of the evidence as a

(7)

whole, would be sufficient to establish by clear and convincing

evidence that no reasonable factfinder would have found the movant

guilty of the offense", or "(2) a new rule of constitutional law,

made

retroactive

to

cases

on

collateral

review by

the

Supreme

Court, that was previously unavailable." 28 U.S.C. §2255(h).

This Court does not get much help from AEDPA in

discerning

the meaning of the phrase "second or successive". In fact, AEDPA

does

not

define

defining".

the

phrase.

Panetti v.

Nor

Quarterman,

is

the

phrase

itself

930

943,

"second

or

551 U.S.

"self­

127

S.Ct.

2842, 168 L.Ed.2d 662 (2007).

But

does

not

this

capture

successively

judgment

Court

in

has

all

time,

explained

collateral

even when

already challenged

in

that

petitions

the

successive"

"filed

second

later filings address

a prior...

application."

or

a...

Id.

at

944. Instead, "second or successive" is a "term or art". Slack v.

McDaniel,

529

U.S.

473,

this

Court

486,

120

S.Ct.

.1595,

146

L.Ed.2d

542

phrase,

"second

or

(2000).

As

has

construed

the

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

law,

including

Panetti,

551

decisions

U.S.

at

predating

943-44.

So

the

enactment

of

this

Court

explore

may

[AEDPA]."

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"

In Panetti,

the petitioner (named Panetti) was convicted of

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

his state-court remedies to no-avail, he filed a federal petition

(8)

for habeas relief under 28 U.S.C. §2254. It, too, was denied. Id.

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 §2254. Id. at 938. He argued

that executing him while he was mentally incompetent would violate

the Eighth Amendment and transgress Ford v. Wainwright, 477 U.S.

399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1985). See Id. at 938-41. The

district

court

denied

his

petition,

and

the

circuit

court

Supreme Court granted certiorari.

Id.

at

Before

affirmed. Id. at 941-42.

This

addressing

the

merits,

jurisdiction

over

§2244(b)(2),

a

the

Court

Panetti's

habeas

considered

claim,

gatekeeping

in

whether

light

mechanism

942.

of

that

is

it

28

had

U.S.C.

much

like

§2255(h) but applies to federal habeas petitions seeking review of

state rather than federal cases. Similar to §2255(h), §2244(b)(2)

precludes

consideration of

any "claim presented in a second or

successive habeas corpus 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.

This

Court

concluded

that

it

enjoyed

jurisdiction

over

Panetti's case because Panetti's second-in-time §2254 petition was

not "second or successive" as that phrase is used in §2244(b)(2)'s

gatekeeping mechanism. Id. at 947. In arriving at this conclusion

the

Court

implications

looked

solely

for habeas

to

three

practice

(9)

if

considerations:

the

Court

found

(1)

it

the

lacked

jurisdiction over Panetti's claim; (2) the purposes of AEDPA; and

(3) the pre-AEDPA abuse-of-the-writ doctrine. See Id. at 943-47.

Beginning

Court

with

the

first discusses

implications

for

habeas

the nature of a Ford claim.

practice,

the

See Id.

943.

Because a Ford claim aserts that a petitioner is not competent to

this

be executed

unless

the

Court noted that such a claim does not ripen

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

may

a

petitioner

not

fall

into

a

state

of

mental

incompetence until after the courts have resolved his first habeas

petition.

claims,

Id.

a

So

if

mentally

"second

or

competent

successive"

prisoner

encompassed

would

always

Ford

have

to

prophylactically raise a Ford claim in his first federal habeas

petition,

might

regardless

eventually

possibility

of

of

whether

become

raising

he had

incompetent,

any

indication

just

to

a Ford claim at a later

that he

preserve

time.

Id.

the

This

practice, this Court observed, "would add to the burden imposed on

courts,

applicants,

and

the States,

with no clear advantage

to

any." Id. at 943.

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.

Notably, the Court held that §2244 should not be interpreted in a

manner

"that

would

'produce

procedural anomalies', and

troublesome

results',

'create

'close our doors to a class of habeas

petitioners seeking review without any clear indication that such

(10)

was Congress'[s]

■

States,

540

intent'." Id. at 946 (quoting Castro v.

U.S.

375,

noting

380-81,

(2003)).

And,

"comity,

finality, and federalism",

purposes,

and

the

that

124

AEDPA's

practical

should be considered when

S.Ct.

United

786,

157

L.Ed.2d

purposes

were

to

778

promote

the Court held that "[t]hese

effects

of

[the

Court's]

interpreting AEDPA",

holdings,

"particularly...

when petitioners run the risk under the proposed interpretation of

forever losing their opportunity for any federal review of their

unexhausted

ommited).

claims."

Id.

at

945-46

(internal

quotation

But "[a]n empty formality requiring prisoners

unripe Ford claims neither respects

available

to

remedies."

Id.

the

946.

And as

to file

the limited legal resources

States nor encourages

at

marks

for

the exhaustion of state

finality concerns, the Court

observed they are not implicated by a Ford claim: because of the

nature of a Ford

address

claim,

such claims

federal courts are generallyunable to

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.

470, 111 S.Ct. 1454.,

Zant, 499 U.S. 467,

113 L.Ed.2d 517 (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

full

and

fair

and decide whether the petitioner had a

opportunity

to

raise

(11)

the

claim

in

the

prior

application." Magwood y. Patterson, 561 U.S. 320, 345, 130 S.Ct.

2788,

177

Panetti,

L.Ed.2d

551

U.S.

592

947).

opportunity

to

subsequent

application

successive',

raise

and

(2010)(Kennedy, J.,

the

"[l]f

the

petitioner

claim

in

the

that

claim

is

does

not

apply."

raising

[AEDPA's]

dissenting)(citing

bar

prior

had

no

fair

application,

a

second

or

not

Id.

at

346

(Kennedy, J., dissenting)(citing Panetti, 551 U.S. at 947). Since

a Fbrd claim considers a petitioner's mental state at the time of

proposed execution and Panetti's

first §2254 petition was filed

well

did

before

that

time,

Panetti

not

have

a

full

and

fair

opportunity to raise that claim-that is, the claim did not ripenuntil after his first §2254 petition was resolved.

See Panetti,

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

writ. Id.

So

ultimately,

the

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,

comity,

implemented to further the principles of

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 not party." Id.

(12)

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".

B.

In Panetti's light, this Court must consider whether secondin-time

petitions

raising

newly

disclosed

actionable

Brady

violations-where the newly disclosed evidence creates a reasonable

probability that it would change the outcome of the proceeding-are

"second

or

successive"

within

gatekeeping

provision.

The

the

meaning

Panetti

of

factors

the

and

§2255(h)'s

their

sub-

considerations uniformly require the conclusion that they are not.

1. Precluding claims based on Brady violations that a prisoner

could not have discovered through due diligence would adversely

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

guilt or

to punishment,

the evidence is material either

irrespective

of

the good

to

faith or bad

faith of the prosecution." Strickler v. Greene, 527 U.S. 263, 280,

119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)(quoting Brady, 373 U.S. at

87)(internal quotation marks omitted). Evidence is "material", in

turn,

when

evidence

"there

been

is

a

disclosed

reasonable

to

the

probability

defense,

the

that,

had

the

result

of

the

proceeding would have been different." Id. (citation and internal

(13)

quotation marks omitted). So no actionable Brady violation occurs

"unless

the

nondisclosure

reasonable

probability

produced

different

a

that

was

so

the

suppressed

evidence would have

Id.

(internal

verdict."

serious

at

that

281

there

is

a

quotation

marks omitted).

Because of the nature of the 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 obligated to file unripe (and in many cases, meritless)

[Brady] claims in each and every [first §2255] 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

disclosed.

And also

Brady

like

violation

that

the Ford claims,

will

eventually

be

the courts would be

forced to address

this avalanche of substantively useless Brady

claims-only

would

there

because Brady

does

not

does. For this reason,

"second

or

be

even

apply only

more

meritless

Brady

in capital cases,

claims

like Ford

finding second-in-time Brady claims to be

successive"

under §2255£h) would

have

even

more

deleterious effects on habeas practice than concluding second-in­

time Ford claims were "second or successive".

2. 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. The Court should start from the proposition that at the

(14)

through

due

diligence

does

not

suspend

the writ,

it certainly

clashes with finality concerns. The Supreme Court has noted that

finality

is

deterrent

important

effect."

to

endow criminal

McCleskey,

499

U.S.

law with

"much of

its

at

(citation

and

491

quotation marks omitted). 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,

affects

57 Ann.

compliance.

Rev.. Psycol.

Cf.

id.

375

(citing

(2006)).

studies

And

legitimacy

showing

reduced

recidivism when defendants perceived themselves as having received

fair process).

When

the

government

consitutionally unfair trial,

imprisons

that undermines

a person after a

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

because,

in

his

view,

less

incentive

compliance

to

makes

comply with

no

the

law

difference

to

conviction.

But that is not the 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

(16)

does not occuer. So the government cannot be heard to complain of

the 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

AEDPA

to

promote,

surely

did

aim

encourage

prosecutors

to

withhold

consitutionally

it

not

to

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

timely

brought his

Brady

claim where

the government's

failures affirmatively and entirely prevented him from doing so.

Cf. Williams v.

L.Ed.2d

Taylor,

529 U.S.

435. (2000)(comity

prisoner

has

failed

4.20, 437,

interests

to develop

"not

the

120 S.Ct.

1479,

146

served

saying

a

factual basis

by

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.

In other words, unless

suppressed

evidence

subjected

to higher

the petitioner becomes aware of the

shortly

after

trial,

standards-through

no

his

claim

will

be

fault

of his

own.

To

subject Brady claims to the heightened standard of §2244(b)(2) is

to

reward

investigators

or

prosecutors

who

engage

in

the

unconstitutional suppression of evidence with a "win"-that is, the

continued incarceration of a person whose trial was fundamentally

unfair (and unconstitutional). Worse still, this situation creates

(17)

incentives for any state actors withholding material evidence to

violate the petitioner's other constitutional rights, if subtly.

Such

an

justice

incentive

nor

structure

finality.

promotes

Surely

neither

Congress

the

interests

did

not

intend

reinforced

the

principles

of

such

a

perverse result.

In

Brady

fact,

claims

Congress

would

recently

not

impede

finality

interests

Federal Rule of Criminal Procedure 5(f)

by

that

amending

through the Due Process

Protections Act of 2020; Pub.L.No. 116-182, 116th Cong., 2d Sess.

(codified at Fed.R.Crim.P.

5(f)). See Fed.R.Crim.P. 5(f)(5);

"If

the Government fails to comply with this Court's Rule 5(f) Order

or the obligations imposed by Brady and its progeny, the Court, in

to

addition

the

of

production

ordering

information,

may:"..."dismiss charges before trial or vacate a conviction after

trial

or

reveals

a

guilty

plea".

The

DPPA's

scant

legislative history

that Congress decided, because of "inadequate safeguards

in Federal law," to require Brady "reminder" orders to ensure that

prosecutors

complied

disclosure

obligations;

Representative,

the

2008

with

their

166 Cong.

Rec.

Sheila Lea Jackson,

trial

of

then-Senator

constitutionally

H4582

(Sept.

mandated

21,

2020).

a House Speaker, pointed to

Ted

Stevens

example" of why such orders were needed.

as

a

"prominent

Id. at H4583. After a

jury found Senator Stevens guilty of seven counts of making false

statements, the district court set aside the verdict due to post­

trial

revelations

that

. exculpatory evidence

to

the

government

the defense.

had

failed

The DPPA seeks

to

disclose

to prevent

similar outcomes and safeguarding a criminal defendant's right to

(18)

a

fair

trial.

Congress

stressed

safeguarding

against

Brady

violations over finality. Holding second-in-time petitions raising

Brady violations as "second or successive" would impede Congress'

urgency

for

safeguarding.

Their

silence

regarding

successive" indicates its existing intent not to subject

Brady

claims

to

the

higher

standards

at

the

"second

or

petitions for

benefit

of

the

Government and finality.

3. Precluding Brady claims that a prisoner could not have

discovered through due diligence is not consistent with the

abuse-of-the-writ doctrine.

allowing

Finally

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

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

applications." 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

showings:

opportunity",

the

(1)

"cause",

he

has

doctrine

or

requires

a

him

"legitimate

to

make

two

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,

112 S.Ct.

2514,

120

L.Ed.2d 269 (1992).

"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. A petitioner satisfies the

(19)

cause

requirement

officials

that

where

makes

he

can

compliance

demonstrate

"interference

by

with

procedural

rule

the...

impracticable, and a showing that the factual or legal basis for a

claim was

not

reasonably

available

to

counsel."

Id.

at 493-94

(citation and internal quotation marks omitted). A Brady violation

that

a

prisoner

discover

could

through the

not

reasonably

have

been

expected

exercise of due diligence falls

into

to

that

category. See, e.g., Strickler, 527 U.S. at 289 (finding cause for

failing

to

raise

exculpatory

a

Brady

evidence,

the

claim where

the prosecution withheld

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 sould 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

prejudice

by

reasonably

have

a

petitioner

establishing

discovered

a

can

Brady

through

demonstrate

violation

due

both

cause

and

that he could not

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

second-in-time claim.

(20)

favors

allowing

such a

CONCLUSION

Mr.

Brik

guaranteed

has

been

the

by

deprived

Fifth

of

Amendment

basic

of

fundamental

rights

the

States

United

Constitution and seeks relief in this Court to restore his rights.

Based on

the

argument

guilty plea was

voluntary

or

and authorities

sustained

presented herein,

in violation of

intelligently

entered

Due

because

Brik's

Process

and not

of

withheld

the

exculpatory evidence. There is a reasonable probability that Brik

would not have plead guilty

in light of the evidence from Dr.

Berrier,

counsel

nor

would

competent

have

recommended him

to.

Therefore his second-in-time petition for newly revealed material

Brady claim was not "second or successive" within the meaning of

AEDPA. Petitioner prays this Court will issue a writ of certiorari

and reverse the Judgment of the Eighth Circuit Court of Appeals. *1

Respectfully submitted on this Q__ of Secfre-iY'W'r, 2022.

Vladimir V. Brik #18466-041

Petitioner/pro-se

1/ (LjM

1.

If this Court elects not to address the issues presented in this petition

at this time, it is requested that the writ issued and the matter be

remanded to the Eight Circuit Court of Appeals for reconsideration in light

of this Court's opinion in Panetti v. Quarterman.

(22)