Petition for Writ of Certiorari — Bryan Frederick Jennings, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections

Supreme Court briefJan 21, 2025

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No. ______

IN THE

Supreme Court of the United States

___________________________________________________________

BRYAN FREDERICK JENNINGS,

Petitioner,

SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.

____________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

______________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

______________________________________________________________

THIS IS A CAPITAL CASE

LINDA McDERMOTT

Counsel of Record

JOHN ABATECOLA

Office of the Federal Public Defender

Northern District of Florida

Capital Habeas Unit

227 N. Bronough St., Suite 4200

Tallahassee, FL 32301

(850) 942-8818

linda_mcdermott@fd.org

CAPITAL CASE

QUESTIONS PRESENTED

Whether 28 U.S.C. § 2244(b) bars a second-in-time federal habeas

petition raising a Brady claim based on evidence that the State failed to disclose until

after the resolution of petitioner’s first federal habeas petition?

Whether this Court’s holding in Panetti v. Quarterman is limited to

Ford-based competency to be executed claims?

Whether this Court’s analysis in Banister v. Davis compels the

determination that the Eleventh Circuit’s interpretation of Panetti is erroneous as a

matter of law?

LIST OF RELATED PROCEEDINGS

Per Supreme Court Rule 14.1(b)(iii), the following cases relate to this petition:

Direct Appeal

Jennings v. State, 413 So. 2d 24 (Fla. 1982)

Supreme Court of Florida, No. 59299

April 8, 1982; Remanded for new trial

Second Direct Appeal

Jennings v. State, 453 So. 2d 1110 (Fla. 1984)

Supreme Court of Florida, No. 62600

July 12, 1984; Affirmed denial

Jennings v. Florida, 470 U.S. 1002 (1985)

Supreme Court of the United States, No. 84-5396

February 25, 1985; Remanded for reconsideration

Jennings v. State, 473 So. 2d 204 (Fla. 1985)

Supreme Court of Florida, No. 62600

May 23, 1985; Remanded for new trial

Third Direct Appeal

Jennings v. State, 512 So. 2d 169 (Fla. 1987)

Supreme Court of Florida, No. 68835

August 27, 1987; Affirmed guilt and death sentence, reversed other convictions

State Collateral Proceedings

Jennings v. State, 583 So. 2d 316 (Fla. 1991)

Supreme Court of Florida, Nos. 75689, 74926

June 13, 1991; Affirmed conviction but remanded to trial court for additional

discovery

Jennings v. State, 782 So. 2d 853 (Fla. 2001)

Supreme Court of Florida, No. SC93056

March 22, 2001; Affirmed denial

Jennings v. State, 36 So. 3d 84 (Fla. 2010) (successive postconviction motion)

Supreme Court of Florida, No. SC08-1812

February 3, 2010; Affirmed denial

Jennings v. State, 91 So. 3d 132 (Fla. 2012) (successive postconviction motion)

Supreme Court of Florida, No. SC11-817

May 25, 2012; Affirmed denial

Jennings v. State, 192 So. 3d 38 (Fla. 2015) (successive postconviction motion)

Supreme Court of Florida, No. SC13-2248

August 28, 2015; Affirmed denial

Jennings v. State, 265 So. 3d 460 (Fla. 2018) (successive postconviction motion)

Supreme Court of Florida, No. SC17-500

October 4, 2018; Affirmed denial

Federal Habeas Review

Jennings v. Crosby, 392 F. Supp. 2d 1312 (N.D. Fla. 2005)

United States District Court for the Northern District of Florida

No. 5:02CV174-RH

September 29, 2005; Petition denied

Jennings v. McDonough, 490 F.3d 1230 (11th Cir. 2007)

United States Court of Appeals for the Eleventh Circuit

No. 05-16363

July 3, 2007; Affirmed denial

Certiorari Review

Jennings v. Florida, 470 U.S. 1002 (1985)

Supreme Court of the United States, No. 84-5396

February 15, 1985; Remanded to the Florida Supreme Court for reconsideration

Jennings v. McNeil, 552 U.S. 1298 (2008)

Supreme Court of the United States, No. 07-9002

March 31, 2008; cert denied

Jennings v. Florida, 139 S.Ct. 2019 (2019)

Supreme Court of the United States, No. 18-8323

May 13, 2019; cert denied

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

LIST OF RELATED PROCEEDINGS .......................................................................... ii

TABLE OF CONTENTS ............................................................................................... iv

INDEX TO APPENDIX ................................................................................................. v

TABLE OF AUTHORITIES ......................................................................................... vi

DECISION BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 1

STATEMENT OF THE CASE....................................................................................... 2

I. Procedural history ............................................................................................... 2

II. Facts relevant to the questions presented ......................................................... 5

The trials and direct appeal ................................................................. 5

Limited disclosure of exculpatory information prior to

Jennings’ first federal habeas petition................................................. 7

New evidence of Muszynski’s involvement with the State ................. 8

REASONS FOR GRANTING THE WRIT .................................................................... 9

I. Introduction ......................................................................................................... 9

II. This Court should grant certiorari to consider whether its decision in

Panetti v. Quarterman, after subsequently being reaffirmed in Banister

v. Davis, compels the determination that the Eleventh Circuit’s

precedent is erroneous as a matter of law. ...................................................... 12

Panetti v. Quarterman ........................................................................ 12

The Eleventh Circuit’s misinterpretation of Panetti and § 2244

in Tompkins ........................................................................................ 14

Banister v. Davis ................................................................................. 15

D. “Illogical rule” ..................................................................................... 16

CONCLUSION............................................................................................................. 17

INDEX TO APPENDIX

Eleventh Circuit Order Affirming the Dismissal of Federal

Habeas Petition (July 22, 2024) ..................................................................................A1

Eleventh Circuit Order Denying Rehearing (September 25, 2024) ...........................A2

District Court Order Dismissing Federal Habeas Petition (March 6, 2020).............A3

District Court Order Denying Motion to Alter or Amend (June 10, 2020) …………A4

TABLE OF AUTHORITIES

Page(s)

Cases

Banister v. Davis, 590 U.S. 504 (2020) ....................................................................... 15

Bernard v. United States, 141 S. Ct. 504 (2020) ......................................................... 16

Brady v. Maryland, 373 U.S. 83 (1963) .................................................................... 3, 8

Burton v. Stewart, 549 U.S. 147 (2007) ................................................................ 13, 14

Edwards v. Arizona, 451 U.S. 477 (1981) ..................................................................... 2

Ford v. Wainwright, 477 U.S. 399 (1986) ................................................................... 12

Giglio v. United States, 405 U.S. 150 (1972) ................................................................ 8

Jennings v. Crosby, 392 F. Supp. 2d 1312 (N.D. Fla. 2005) ......................................... 3

Jennings v. Florida, 470 U.S. 1002 (1985).................................................................... 2

Jennings v. Florida, 534 U.S. 1096 (2002).................................................................... 3

Jennings v. Inch, Case No. 5:18-cv-00281-RH-MJF (N.D. Fla. Dec. 28, 2018) ........... 4

Jennings v. McDonough, 490 F.3d 1230 (11th Cir. 2007) ............................................ 4

Jennings v. McNeil, 552 U.S. 1298 (2008) .................................................................... 4

Jennings v. Secretary, Florida Department of Corrections,

108 F. 4th 1299 (11th Cir. 2024)...................................................................... 1, 5, 11

Jennings v. State, 192 So. 3d 38 (Fla. 2015) ................................................................. 4

Jennings v. State, 265 So. 3d 460 (Fla. 2018) ............................................................... 4

Jennings v. State, 36 So. 3d 84 (Fla. 2010) ................................................................... 4

Jennings v. State, 413 So. 2d 24 (Fla. 1982) ................................................................. 2

Jennings v. State, 453 So. 2d (Fla. 1984) ..................................................................... 2

Jennings v. State, 473 So. 2d 204 (Fla. 1985) ............................................................... 2

Jennings v. State, 484 U.S. 1079 (1988) ....................................................................... 3

Jennings v. State, 512 So. 2d 169 (Fla. 1987) ........................................................... 3, 7

Jennings v. State, 583 So. 2d 316 (Fla. 1991) ............................................................... 3

Jennings v. State, 782 So. 2d 853 (Fla. 2001) ............................................................... 3

Jennings v. State, 91 So. 3d 132 (Fla. 2012) ................................................................. 4

Panetti v. Quarterman, 551 U.S. 930 (2007)....................................... 10, 12, 13, 15, 16

Scott v. United States, 890 F.3d 1239 (11th Cir. 2018) .................................. 11, 12, 16

Slack v. McDaniel, 529 U.S. 473 (2000) ................................................................ 13, 15

Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) ................................................... 13

Storey v. Lumpkin, 142 S. Ct. 2576 (2022) ................................................................. 16

Tompkins v. Secretary, Department of Corrections,

557 F.3d 1257 (11th Cir. 2009) .................................................................... 10, 14, 15

United States v. Henry, 447 U.S. 264 (1980) ................................................................ 8

Statutes

28 U.S.C. § 1254(1) ........................................................................................................ 1

28 U.S.C. § 2244(b) ...................................................................................................... 11

28 U.S.C. § 2244(b)(2) .............................................................................................. 9, 10

28 U.S.C. § 2244(b)(2)(B) ............................................................................................... 1

vii

Petitioner Bryan Jennings respectfully urges this Honorable Court to issue its

writ of certiorari to review the decision of the Eleventh Circuit Court of Appeals.

DECISION BELOW

The Eleventh Circuit’s decision appears as Jennings v. Secretary, Florida

Department of Corrections, 108 F. 4th 1299 (11th Cir. 2024), and is reproduced in the

Appendix at A1.

JURISDICTION

On July 22, 2024, the Eleventh Circuit entered its judgment affirming the

district court’s dismissal of Jennings’ petition. App. A1. On September 25, 2024,

rehearing was denied. App. A2. This Court granted Jennings an extension of time to

file a petition for a writ of certiorari until January 23, 2025. This petition is timely.

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the United States provides in

relevant part:

No persons . . . shall . . . be deprived of life, liberty or property, without

due process of law.

The Fourteenth Amendment to the Constitution of the United States provides

in relevant part:

No State shall . . . deprive any person of life, liberty, or property, without

due process of law.

28 U.S.C. § 2244(b)(2)(B) provides in relevant part:

(2) A claim presented in a second or successive habeas corpus application

under section 2254 that was presented in a prior application shall be

dismissed unless—

(B)(i) the factual predicate for the claim could not have been

discovered previously through the exercise of due diligence; and

(B)(ii) the facts underlying the claim, if proven and viewed in light

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

and convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the applicant guilty of the

underlying offense.

STATEMENT OF THE CASE 1

Procedural history

Bryan Jennings was indicted on May 16, 1979, in Brevard County, Florida with

three counts of first-degree murder, kidnapping, three counts of sexual battery,

burglary, and aggravated battery. R1. 1. While Jennings was convicted and sentenced

to death, on direct appeal the Florida Supreme Court vacated the judgments and

sentences and ordered a new trial. Jennings v. State, 413 So. 2d 24 (Fla. 1982).

Jennings’ second trial was held in 1982. He was convicted and sentenced to

death. R2. 1035. This time, the Florida Supreme Court affirmed the convictions and

sentences. Jennings v. State, 453 So. 2d 1110 (Fla. 1984). However, on certiorari

review, this Court vacated the judgement and remanded the case in light of Edwards

v. Arizona, 451 U.S. 477 (1981). Jennings v. Florida, 470 U.S. 1002 (1985). In turn,

Citations in this petition are as follows: References to the records on direct appeal

for each of Jennings’ three trials are designated as “R.” followed by the number of the

trial. References to the records on appeal from the denial of each of Jennings’

postconviction motions are designated as “PC-R.” followed by the number of the

postconviction appeal. All other references are self-explanatory or otherwise

explained.

the Florida Supreme Court remanded for a new trial. Jennings v. State, 473 So. 2d

204 (Fla. 1985).

In Jennings’ third trial, which occurred in 1986, he was again found guilty, and

the jury returned a recommendation of death by a vote of eleven to one. R3. 12951301, 3432. On direct appeal, the Florida Supreme Court affirmed the verdicts of guilt

and the sentence of death. Jennings v. State, 512 So. 2d 169 (Fla. 1987). Jennings’

petition for a writ of certiorari was denied on February 22, 1988. Jennings v. State,

484 U.S. 1079 (1988).

On October 23, 1989, Jennings filed a postconviction motion in the state circuit

court, which included several Brady 2 claims. The state circuit court summarily

denied relief and Jennings appealed. PC-R1. 436, 484. Thereafter, the Florida

Supreme Court affirmed the circuit court’s decision, but remanded the case to permit

Jennings time to file another motion for postconviction relief arising out of the

disclosure of additional public records. Jennings v. State, 583 So. 2d 316 (Fla. 1991).

Following the remand, the circuit court held an evidentiary hearing on two

aspects of Jennings’ Brady allegations and on an ineffective assistance of counsel

claim. After the circuit court denied relief on March 18, 1998, the Florida Supreme

Court affirmed the denial on appeal. Jennings v. State, 782 So. 2d 853 (Fla. 2001).

Certiorari was denied on January 7, 2002. Jennings v. Florida, 534 U.S. 1096 (2002).

On October 2, 2002, Jennings filed a petition for writ of habeas corpus in the

United States District Court for the Northern District of Florida. Jennings v. Crosby,

2 Brady v. Maryland, 373 U.S. 83 (1963).

392 F. Supp. 2d 1312 (N.D. Fla. 2005). On September 29, 2005, the district court

issued an order denying relief. Id. After briefing and oral argument, the Eleventh

Circuit issued an opinion on July 3, 2007, affirming the denial of Jennings’ petition.

Jennings v. McDonough, 490 F.3d 1230 (11th Cir. 2007), rehearing denied on August

24, 2007. Certiorari was denied on March 31, 2008. Jennings v. McNeil, 552 U.S. 1298

(2008).

Jennings thereafter filed a number of successive postconviction motions, each

of which was denied by the state circuit court and affirmed on appeal by the Florida

Supreme Court. See Jennings v. State, 36 So. 3d 84 (Fla. 2010); Jennings v. State, 91

So. 3d 132 (Fla. 2012); Jennings v. State, 192 So. 3d 38 (Fla. 2015); Jennings v. State,

265 So. 3d 460 (Fla. 2018).

On December 28, 2018, Jennings filed a second-in-time petition for writ of

habeas corpus in the federal district court, which included a claim based on favorable

evidence that had been previously undisclosed by the State. Jennings v. Inch, Case

No. 5:18-cv-00281-RH-MJF (N.D. Fla. Dec. 28, 2018), NDFL-ECF 1. The district

court dismissed Jennings’ petition for lack of jurisdiction on March 6, 2020, and

thereafter denied his motion to alter or amend on June 10, 2020. NDFL-ECF 25, 28.

Jennings timely filed a notice of appeal on July 7, 2020. NDFL-ECF 29.

On July 23, 2020, Jennings filed an application for a certificate of appealability

(COA), which was denied on January 13, 2021. CA11-ECF 6, 11. Jennings filed a

motion for reconsideration on February 3, 2021. CA11-ECF 12. The Eleventh Circuit,

on May 8, 2023, denied Jennings’ application as it related to an alternative Rule 60(b)

motion, but noted that Jennings “does not need a certificate of appealability” as to

the dismissal of his petition for writ of habeas corpus. CA11-ECF 13.

After briefing and oral argument, the Eleventh Circuit issued an opinion on

July 22, 2024, affirming the dismissal of Jennings’ federal habeas petition for lack of

subject-matter jurisdiction. Jennings v. Secretary, Florida Department of Corrections,

108 F.4th 1299 (11th Cir. 2024). Jennings filed a petition for en banc and panel

rehearing, which the Eleventh Circuit denied on September 25, 2024. CA11-ECF 43.

II.

Facts relevant to the questions presented

The trials and direct appeal

In Jennings’ first two trials, the State relied on the testimony of jailhouse

informant Allen Kruger to establish both Jennings’ guilt and several aggravating

factors to qualify him for the death penalty. R. 609-13; R2. 449-60. Kruger was

deceased by the time of the third trial, so the State called another jailhouse

informant, Clarence Muszynski, over the objections of defense counsel that

Muszynski had been acting as a State agent during his alleged conversations with

Jennings. R3. 623-82.

Muszynski testified to the details of the murder, claiming that Jennings had

voluntarily revealed this information while they were both incarcerated at Brevard

County Jail. R3. 624-25. On redirect, after defense counsel attempted to impeach

Muszynski’s stated motivations for testifying against Jennings, Muszynski denied

being promised or given anything in exchange for his testimony, stating, “I would

never.” R3. 682. Instead, Muszynski’s purported motive for coming forward was based

on Jennings’ attitude. R3. 681. According to Muszynski, “The whole time he was

telling me it was a big joke, nothing but laughing about the whole thing. . . It was

unreal, as if it was nothing.” R3. 681-82.

In closing arguments at the guilt phase, the prosecutor argued vigorously that

the jury should believe Muszynski, stating that “in this case when you consider all

the evidence, you know that he told the truth . . . . ” R3. 1229. The prosecutor further

bolstered Muszynski’s “selfless” motive, stating that he came forward “[b]ecause this

crime is so horrible, this crime is so distasteful that Mr. Muszynski could not listen

to this and hear this man tell him and laugh about doing this, and not go to the

authorities.” R3. 1245-46. The prosecutor relied on Muszynski’s testimony yet again

in closing arguments at the penalty phase, emphasizing graphic details of the crime

lifted directly from Muszynski’s testimony while arguing that Jennings met the

statutory aggravating factors of heinous, atrocious, or cruel (“HAC”) and cold,

calculated, and premeditated (“CCP”). R3. 1660-62. The prosecutor also argued that

the account provided by Muszynski undermined the defense’s argument that

Jennings was severely intoxicated on drugs and alcohol on the night of the crime. R3.

1669.

After the jury returned its death recommendation, the presiding judge imposed

a sentence of death, finding all three aggravating circumstances sought by the State.

In support of the HAC and CCP aggravators, the court recited events provided in

Muszynski’s testimony as fact. R3. 3461.

The Florida Supreme Court also relied in substantial part on the integrity of

Muszynski’s testimony when upholding Jennings’ death sentence on direct appeal.

The court quoted the portion of the trial court’s sentencing order which outlined the

salient details of the crime, details which stemmed primarily from Muszynski’s

testimony. See Jennings, 512 So. 2d at 175-76. Based on these details, the Florida

Supreme Court concluded that “[t]he record fully supports” the trial judge’s finding

of the aggravating circumstances. Id. at 176.

Limited disclosure of exculpatory

Jennings’ first federal habeas petition

information

prior

Based on disclosures made in response to public records requests, Jennings’

initial postconviction motion in state court included Brady claims asserting the State

had withheld evidence relating not just to Muszynski, but also to other aspects of the

State’s case against Jennings. The exculpatory evidence included (1) prosecutors’

notes regarding Kruger that could have been used to impeach his and Muszynski’s

testimony, PC-R2. 1152; (2) a taped statement of witness Judy Slocum, in which she

gave a description of Jennings’ intoxicated condition in the hours directly before the

crime and her interaction with Jennings, PC-R. 310-14; Def. Ex. 2; (3) an October 22,

1985 letter from Muszynski asking the State to get him an attorney so he would be

able to communicate with the prosecutor for “any possible assistance you may require

of me,” PC-R. 322; Def. Ex. 2; and (4) field notes regarding other suspects, PC-R2.

633-35.

New evidence of Muszynski’s involvement with the State

Since the resolution of Jennings’ first federal habeas petition, additional

exculpatory evidence which the State previously failed to disclose has been

uncovered: (1) Muszynski’s confidential presentence investigation (PSI) report

showing the State’s leverage over him because it was seeking a judicial override for

death in his case while Jennings’ case was still pending, PC-R5. 70-71; (2)

Muszynski’s wife, Gail Muszynski, faced impending prosecution because of her

actions in Muszynski’s own murder case, and her direct benefit from his cooperation

in Jennings’ case, PC-R5. 127-32, 915; and (3) Muszynski’s own benefits of receiving

trustee status and conjugal visits with his wife because of his cooperation against

Jennings, PC-R5. 45-46, 93. Based on the newly discovered exculpatory evidence,

Jennings filed a successive motion for postconviction relief in 2011, asserting

violations of United States v. Henry, 447 U.S. 264 (1980), Brady v. Maryland, and

Giglio v. United States, 405 U.S. 150 (1972). PC-R5. 248-55.

During a 2012 evidentiary hearing, the state circuit court took judicial notice

of the two prosecutions for perjury against Pamela Gail Carter Muszynski, Case No.

79-949-CF-A and Case No. 79-1102-CF-A, along with the confidential PSI conducted

in Muszynski’s own first-degree murder case. PC-R5. 70-71, 127-32. The PSI revealed

that the State charged Gail with perjury, based on her statements made in

Muszynski’s case, prior to Jennings’ first trial. PC-R5. 903. 3 The PSI further revealed

3 The information from Gail’s court file also set forth that Gail had provided a sworn

statement on March 13, 1979, in which she stated that before the murder for which

he was charged, Muszynski had told her, “I am going to have to kill him.” PC-R5. 894.

that the prosecutor recommended a death sentence be imposed for Muszynski in light

of the aggravating circumstances. PC-R5. 909.

Muszynski, who had been given access to the PSI back in 1979, PC-R5. 70,

testified that he decided to cooperate with the State Attorney’s office to secure

favorable treatment for himself and his wife. PC-R5. 70-73. Based on the State’s

direction and coaching, Muszynski fostered a relationship with Jennings in jail for

the purpose of getting a confession out of him. PC-R5. 73. In return for his work, the

State made Muszynski a trustee, which came with perks like conjugal visits, during

which Muszynski and Gail conceived their daughter. PC-R5. 45-46, 93. The State also

rewarded the Muszynskis with leniency in Gail’s pending felony prosecution for

perjury; the court let her off with a slap on the wrist, withholding adjudication and

sentencing her to five years of probation. PC-R5. 915. 4

REASONS FOR GRANTING THE WRIT

Introduction

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

a state prisoner’s ability to file a second petition for a writ of habeas corpus in federal

court. 28 U.S.C. § 2244(b)(2) bars review of “a second or successive habeas corpus

application” unless it (A) relies on a previously unavailable and retroactive “new rule

Then, on May 10, 1979, Gail testified before the prosecutor handling Muszynski’s

prosecution that “[n]o, he did not tell me that neither. And I know I told them when

I first came down here, I told them that.” PC-R5. 894.

Gail testified at the evidentiary hearing that she was not worried about other

charges because Muszynski had assured her that everything would be okay for her

as he would take care of it. PC-R5. 156.

of constitutional law,” or (B) contains newly discovered evidence sufficient to

establish by clear and convincing evidence that no reasonable factfinder would have

found the applicant guilty. This statutory provision was enacted in order to prevent

inmates from abusing the writ through intentionally prolonged litigation or

repeatedly filing frivolous claims. See Panetti v. Quarterman, 551 U.S. 930, 945-47

(2007).

In bringing his second-in-time petition to the district court, Jennings argued

that applying § 2244(b)(2) to his filing would not serve its intended purpose. Jennings

acknowledged that his petition was second-in-time, but asserted that under Panetti,

there are exceptions to § 2244’s restrictions on successive habeas petitions,

specifically where a petitioner is raising a claim that was not ripe at the time of his

initial petition. See id. at 943-45. Because the State actively blocked and continued

to withhold evidence from Jennings throughout his state postconviction proceedings

and initial federal habeas review, Jennings asserted that he could not have raised his

current Brady claims at an earlier stage.

The district court rejected Jennings’ argument, dismissing his § 2254 petition

on procedural grounds. NDFL-ECF 25 at 3-4. The district court found it did not have

jurisdiction to consider Jennings’ petition because it was successive under § 2244.

NDFL-ECF 25 at 3-4. The district court declined to apply the Panetti exception to

Jennings’ case because, “Under the law of the circuit, Panetti does not apply to Brady

or Giglio claims.” NDFL-ECF 25 at 4 (citing Tompkins v. Secretary, Department of

Corrections, 557 F.3d 1257 (11th Cir. 2009)). The district court concluded, “Tompkins

is controlling and requires dismissal of Jennings’s new § 2254 petition.” NDFL-ECF

25 at 4. 5

On appeal, the Eleventh Circuit framed the issue as follows: “Because Jennings

did not move in this Court for an order authorizing consideration of his second-intime § 2254 petition before he filed it in the district court, we must decide whether

his petition is second or successive for the purposes of § 2244(b).” Jennings v.

Secretary, Florida Department of Corrections, 108 F. 4th 1299, 1302 (11th Cir. 2024).

Noting that it was not writing on a “clean slate,” the panel concluded that it remained

bound by Tompkins and therefore Jennings’ second-in-time petition was second or

successive. Id.

In a concurring opinion, Judge Pryor, joined by Judge Wilson, stated that but

for the prior panel precedent rule, “I would conclude that a habeas petition alleging

an actionable Brady violation that the petitioner, in exercising due diligence, could

not have been expected to discover in the absence of the government’s disclosure, is

not a ‘second or successive’ petition within the meaning of 28 U.S.C. § 2244(b).”

Jennings, 108 F. 4th at 1306 (Pryor, J., joined by Wilson, J., concurring). Judge Pryor

reiterated her view, as explained in Judge Rosenbaum’s opinion in Scott v. United

5 Notably, the district court in its order observed that “Eleventh Circuit judges . . .

have expressed conflicting opinions on whether a petition asserting a Brady claim

based on newly discovered evidence is a second or successive petition under § 2244.”

NDFL-ECF 25 at 8. The district court continued, “Tompkins settles the law of the

circuit on this, at least for now, but the law of the circuit is not immutable; it is

sometimes changed by the Eleventh Circuit en banc or by the Supreme Court.”

NDFL-ECF 25 at 8.

States, 890 F.3d 1239, 1249-54 (11th Cir. 2018), that Tompkins was wrongly decided.

Id. 6

II.

This Court should grant certiorari to consider whether its decision in

Panetti v. Quarterman, after subsequently being reaffirmed in

Banister v. Davis, compels the determination that the Eleventh

Circuit’s precedent is erroneous as a matter of law.

Panetti v. Quarterman

In Panetti, this Court held that “Congress did not intend the provisions of

AEDPA addressing ‘second or successive’ petitions to govern a filing in the unusual

posture presented [t]here: a § 2254 application raising a Ford 7-based incompetency

claim filed as soon as that claim is ripe.” 551 U.S. at 945. In so finding, this Court

acknowledged that in the usual case, a petition filed second-in-time must meet the

“second or successive” terms of § 2244 or else be barred by AEDPA. However, in

analyzing the question of what constitutes a “second or successive” petition, this

Court found that “[t]here are, however, exceptions” to the statutory bar. Panetti, 551

U.S. at 947. This Court observed that it “has declined to interpret ‘second or

6 In Scott, the Eleventh Circuit determined that under the prior panel precedent rule,

it was bound to apply Tompkins to hold that “a second-in-time collateral motion based

on a newly revealed Brady violation is not cognizable if it does not satisfy one of

AEDPA’s gatekeeping criteria for second-or-successive motions.” Scott, 890 F.3d at

1243. Nevertheless, the Scott panel was of the belief that “Tompkins got it wrong,”

explaining that the “Tompkins’s rule eliminates the sole fair opportunity for these

petitioners to obtain relief.” Id. at 1243. According to the panel, precluding the filing

of a second-in-time petition based on a previously undiscoverable Brady violation is

“doubly wrong,” as it “rewards the government for its unfair prosecution and

condemns the petitioner for a crime that a jury in a fair trial may well have acquitted

him of.” Id. at 1244. The Scott panel believed its view is supported by this Court’s

precedent. Id. at 1243.

7 Ford v. Wainwright, 477 U.S. 399 (1986).

successive’ as referring to all § 2254 applications filed second or successively in time,

even when the later filings address a state-court judgment already challenged in a

prior § 2254 application.” Id. at 944 (citing, e.g., Slack v. McDaniel, 529 U.S. 473, 487

(2000)). Rather, the phrase “second or successive” is “not self-defining” and instead

takes its full meaning from the Court’s habeas case law, including those decisions

predating AEDPA. Panetti, 551 U.S. at 943-44. After examining its own precedent,

this Court assessed the following considerations found in the case law to decide

whether a Ford claim was one such second-in-time exception: the implications for

habeas practice; AEDPA’s own purposes; and whether a type of later-in-time filing

would have constituted an abuse of the writ. Id. at 943-47.

This Court in Panetti concluded that the statutory bar on “second or successive”

applications does not apply to Ford claims after addressing the aforementioned

factors. As to the implications of habeas practice and the purposes of AEDPA, this

Court predicted that the State’s approach of requiring a petitioner to preserve a

future Ford claim in his first habeas petition would be “‘far reaching and seemingly

perverse.’” Id. at 943 (quoting Stewart v. Martinez-Villareal, 523 U.S. 637, 644

(1998)). It would result in a legal scheme where “conscientious defense attorneys

would be obliged to file unripe (and, in many cases, meritless) Ford claims in each

and every § 2254 application.” Id. This Court found that the empty formality of

requiring petitioners to file premature claims does not “conserve judicial resources,

‘reduc[e] piecemail litigation,’ or ‘streamlin[e] federal habeas proceedings.’” Id. at 946

(quoting Burton v. Stewart, 549 U.S. 147, 154 (2007)). Nor was AEDPA’s concern for

finality implicated since federal courts would be unable to resolve Ford claims before

execution was imminent. Id. Likewise, Ford claims could not constitute an abuse of

the writ since the Court had confirmed that “claims of incompetency to be executed

remain unripe at early stages of the proceedings.” Id. at 947. Ultimately, this Court

opted for the reasonable interpretation of § 2244 that did not “produce these

distortions and inefficiencies.” Id. at 943.

The Eleventh Circuit’s misinterpretation of Panetti and § 2244

in Tompkins

During a pending death warrant and with an imminent execution date,

petitioner Wayne Tompkins appealed from the district court’s dismissal of a secondin-time § 2254 petition that included claims pursuant to violations of Brady and

Giglio. Tompkins, 557 F.3d at 1259. Tompkins asserted that in accordance with

Panetti, his petition was “not really a second or successive one.” Id.

In foreclosing Tompkins’ argument, the Eleventh Circuit found that “[t]he

Panetti case involved only a Ford claim, and the Court was careful to limit its holding

to Ford claims.” Id. at 1259. The Tompkins court explained that “[t]he reason the

Court was careful to limit its holding is that a Ford claim is different from most other

types of habeas claims.” Id. The court elaborated, “Ford-based incompetency claims,

as a general matter, are not ripe until after the time has run to file a first federal

habeas petition.” Id. (citation omitted). Conversely, the court found the violation of

constitutional rights asserted in Brady and Giglio claims “occur, if at all, at trial or

sentencing and are ripe for inclusion in a first petition.” Id. Thus, the Eleventh Circuit

in Tompkins distinguished the claims by how it defined “ripeness”: “The reason the

Ford claim was not ripe at the time of the first petition in Panetti is not that evidence

of an existing or past fact had not been uncovered at that time. Instead, the reason it

was unripe was that no Ford claim is ever ripe at the time of the first petition because

the facts to be measured or proven—the mental state of the petitioner at the time of

execution—do not and cannot exist when the execution is years away.” Id.

Banister v. Davis

Subsequent to the Eleventh Circuit’s decision in Tompkins, this Court decided

Banister v. Davis, 590 U.S. 504 (2020), which settled a circuit split on the issue of

whether Rule 59(e) motions in habeas practice should be categorized as second or

successive petitions. Id. at 511. Recalling its own precedent, this Court recognized

the phrase “second or successive” is a term of art which is not self-defining. Id. (citing

Slack, 529 U.S. at 486; Panetti, 551 U.S. at 943).

In conducting its analysis, this Court in Banister unequivocally reaffirmed the

factors identified in Panetti that must be considered in determining whether a

chronologically second petition is “second or successive”: the implications for habeas

practice when interpreting § 2244; AEDPA’s own purpose; and the abuse of the writ

doctrine. Based on these factors, both historical precedents and statutory aims, this

Court concluded that Rule 59(e) motions are permitted in habeas proceedings, “[a]nd

nothing cuts the opposite way.” Id. at 513.

Banister’s analysis confirms that the narrow interpretation of Panetti by the

Tompkins court was fundamentally flawed. Pertinently, Banister’s implementation

of the Panetti test in evaluating a second application outside of the Ford context

stands at odds with the Eleventh Circuit’s restrictive interpretation in Tompkins, one

which relied on “a new test not found in Panetti,” but instead was based on an

erroneous description of the term “ripeness.” Scott, 890 F.3d at 1256. 8

“Illogical rule” 9

As part of its review, this Court should also consider the irrationality and

unfairness of barring a petitioner from litigating violations of his fundamental

constitutional rights where the Government conceals its misconduct throughout the

time in which said petitioner could have raised those violations in his initial § 2254

petition. Such an outcome is not supported by Panetti, as petitioner would be required

to bring claims in an initial petition that are non-existent or speculative, rather than

ripe. This would have negative “implications for habeas practice,” id. at 943, without

furthering AEDPA’s goals of comity, finality, and federalism. And it would threaten

a petitioner—while consequently rewarding the State for its unlawful actions—with

“forever losing [his] opportunity for any federal review” of his constitutional claims.

See Panetti, 551 U.S. at 945-46 (citation omitted).

8 The Eleventh Circuit is not alone in getting the second-in-time analysis wrong. See

Storey v. Lumpkin, 142 S. Ct. 2576 (2022) (Sotomayor, J., respecting denial of

certiorari) (noting that “at least three other Courts of Appeals have adopted the same

erroneous interpretation as the Fifth Circuit,” and stating, “I trust that other federal

courts will pay closer heed to Panetti and Banister when they confront this important

issue.” Id. at 2579.

See Bernard v. United States, 141 S. Ct. 504, 506-07 (2020) (Sotomayor, J.,

dissenting from the denial of certiorari and application of stay) (stating that the

“illogical rule” utilized by the Fifth Circuit, which is also utilized by the Eleventh

Circuit, “perversely rewards the government for keeping exculpatory information

secret until after an inmate’s first habeas petition has been resolved.”

CONCLUSION

Based on the foregoing, this Court should grant a writ of certiorari to review

the decision of the Eleventh Circuit Court of Appeals in this case.

/s/ Linda McDermott