Respondents Brief — Bryan Frederick Jennings, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections

CASE NO. 24-6406

In The

Supreme Court of The United States

BRYAN FREDERICK JENNINGS,

Petitioner,

Vv.

SECRETARY, DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI

TO THE ELEVENTH CIRCUIT

JAMES UTHMEIER

ATTORNEY GENERAL OF FLORIDA

CARLA SUZANNE BECHARD*

Associate Deputy Attorney General

*Counsel of Record

DORIS MEACHAM

Assistant Attorney General

Office of the Attorney General

3507 East Frontage Road, Suite 200

Tampa, Florida 33607

Telephone: (813) 287-7900

CarlaSuzanne.Bechard@myfloridalegal.com

Doris.Meacham@myfloridalegal.com

CapApp@myfloridalegal.com

Capital Case

QUESTIONS PRESENTED

1. Whether a second-in-time § 2254 petition raising Brady and

Giglio claims is a second or successive petition subject to §

2244(b)’s restrictions.

2. Whether this Court's holding in Panetti v. Quarterman

extends to Brady and Giglio claims.

3. Whether this Court's analysis in Banister v. Davis, which

distinguished Rule 59(e) motions from Rule 60(b) motions,

abrogates Tompkins.

TABLE OF CONTENTS

Contents

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

TABLE OF CONTENTS .............cccccscccceeesssncecceceeceeceesessennaneeececeeeeeeeceeceaaeeeeseesesenaeaeeters li

TABLE OF CITATIONS ...........c:ccccsssceceessceessssecececeesseeceeeeeessncesesesssaaeeesessuateasensaeesessees iii

CITATION TO OPINION BELOW..............ccccccccccccsssssecnceceeececeeeessececenennseceeeescsnseneeseeees 1

STATEMENT OF JURISDICTION. 0.0.0... ..cccccccesesscccceseseeeceeeesseeseeseeseeneeseessnesessaneeeees 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.........000...e 1

STATEMENT OF THE CASE AND FACTS ...............ccccccccccceceeeeeeeeenecneceeeeeecessteneeseeeenes 2

REASONS FOR DENYING THE WRIT ...............cccccccsssssenceeeeeeeceesessesseseeeceneessneeeeeens 10

CONCLUSION ....o.cccccccccccceceessssseneneeeeeceseesesseeeeeeceseeseceseuenseneseeeeseesesqeseaenseeeeesesenneeeeeees 18

ul

TABLE OF CITATIONS

Page(s)

Cases

Banister v. Davis,

140 S. Ct. 1698 (2020) ooo. cccccssssseceeeeeceeeseenaeeceeeeeeeseesusaneaseseeeesesseeaeeeseues 14, 15

Bell v. State,

90 So. 2d 704 (Fla. 1956) ..........ccccccccccccccceecssssseeeeeeeseesessaeaceaeeeseecescneneaaeeceeeeeeceseeseneeaaas 5

Braxton v. United States,

BOO U.S. 344 (1991) ooo eee ccccccscssscececceceeecssseaeeeeeceecesecsaneaaseeeeeeeeseeeeceaaesaeeaseeeeeseeagea 10

Del Castillo v. Sec’y, Fla. Dep’t of Health,

26 F.4th 1214 (11th Cir, 2022) ooo. cccccccccecceceenceneecceccenceccenceceeseecenseeeeeanaeeeseneess 15

Edwards v. Arizona,

ABL U.S. 477 (1981) cecccccccccecosessecsuecsucssecsvecseseseceusessecsussseesssssucssecsseessessucssesssestecsaneceneees 2

Evans v. Smith,

220 F.3d 306 (4th Cir. 2000) ..........cccccccccccccesesssssecceceecescesseessaaeeeeesseesesesessescneeeesseees 10

Ford v. Wainwright,

ATT U.S. 399 (1986) .........ecccccsessseseceeaceececenseoeesceccnasscecesacesceeauasececccauesecsaeseceseneesees 11

Garcia v. Quarterman,

578 F.3d 214 (5th Cir. 2009) oo... cesesessscceececececeeceeseaaeeeaaeaaseaeeaseassaaeeessavereceess 14

Garrett v. Univ. of Ala. at Birmingham Bad. of Trs.,

344 F.3d 1288 (11th Cir. 2008) ........ ccc cccccccccccccceceecececeeeececeeeeecesseseessesseeeeesseeeseesens 15

Giglio v. United States,

AOS U.S. 150 (1972) ..ccccccsecseccucssecsesssesuecsessucsuessucssessucsvessessessessucsuessusssessessnssvestessseeasease 4

Hurst v. Florida,

136 S. Ct. 616 (2016) oe. cccceceesssseenennceceeeesesseeaeeaceeceeeessesenseeeeeeeseeseseeesseseeceseesees 7

Hurst v. State,

202 So. 3d 40 (Fla. 2016) ....cccccccsescseccsecesessucssvsssesceveseesssssecsucssecsusesecesecsssssecsevenseeceaenee 7

Hutchins v. Lizarraga,

No. 17-CV-03921-BLF, 2021 WL 326909 (N.D. Cal. Feb. 1, 2021)... 15

Jennings v. Crosby,

392 F. Supp. 2d 1312 (N. D. Fla. 2005) oo... scene cceeeneeeneeeeeeeaeeeseeseneeeeneereeteetees 3

Jennings v. Sec’y, Fla. Dep’t of Corr.,

108 F. 4th 1299 (11th Cir. 2024) 2000... eeceeccecccceecceneaneaeeeeeeeceeseeeenaneeeseeeeeanaeeeeters 1,9

Jennings v. State,

36 So. 3d 84 (Fla. 2010)... cceccccccccceesesesesseaceeeceseeescneeeceeeeeeeeceeseneeaeeeeeeeeeteneeesesenees 3

Jennings v. State,

91 So. 3d 182 (Fla. 2012)... ccecccccccccccceeeecessssnsaeeeeeeeeseasaeeaanaeeeeeeeeeeeseaaaeenaeeesneaseters 4

Jennings v. State,

192 So. 3d 38 (Fla. 2015)... ccccccsscesecseeceeecsessneneneceneeeeeeteesensneaeeeeeteeteeseeneneeeies 4,7

Jennings v. State,

265 So. 3d 460 (Fla. 2018).........cccccescccccceececceeeescnnaeceeececeessceesccneneeseceeeeseeeeeceeaeecseneeeeees 7

ill

Jennings v. State,

A13 So. 2d 24 (Fla. 1982)... eccccececesssssseeseeseescessesessscsessecsssesssesersessscscsessesesseeeseeens 2

Jennings v. State,

453 So. 2d 1109 (Fla. 1984)... eeesssseeseesesseesecscsseuesccneescessepsesssessessseeseseneenes 2

Jennings v. State,

512 So. 2d 169 (Fla. 1987)... cece ccc ccecceccecceceeceeccececceeceeccecseceesesecececceeeseceeseeses 3, 4

Jennings v. State,

583 So. 2d 316 (Fla. 1991)... cccccccccessssssensneceeeeseeseseceueeceeeeecesesseseseeenseeeeeesessseearas 3

Jennings v. State,

782 So. 2d 858 (Fla. 2001). ...... cc ccccsecscecccncecseessesececcencecsecausessesseeeceseesauasseseseeeeseesees 3

Jimenez v. Sec’y, Fla. Dep’t of Corr.,

758 Fed. Appx. 682 (11th Cir. 2018).....cccccsccsescsscssecccescssesssescseessucesecececerereesvessnsensees 10

Lindsey v. Jenkins,

No. 21-3745, 2022 WL 20854727 (6th Cir. Dec. 1, 2022)... ececcesteteeeeeeeeees 15

Melendez v. State,

718 So. 2d 746 (Fla. 1998)...........cccccccccseneenecneenceneenennenusenaenaaaaaaaeaaaaaaaaaaeaaaaaaaaaaneeeeseeeees 5

NLEB v. Datapoint Corp.,

642 F.2d 123 (5th Cir. Unit A Apr. 1981).......... cc cccceeecececeeeeeeecneaaeneeeeeeeeeeeseceaaaaes 15

Panetti v. Quarterman,

B51 U.S. 980 (2007) .....cccececcccccesssssecesseseceeeecesssaneeececncecessceeeeeeseaceseesestenaeeeetsaaees 7,11

Perry v. State,

210 So. 3d 630 (Fla. 2016)..........ccccccccccsssccecseseececeesceceecceeseeeeseesseceneeeesecesseaeeereeeeesenaees 7

Porter v. McCollum,

130 S. Ct. 447 (2009) ..cccccccsseccsecsseessesssucesecssecesucceseesascesuessesecucerucesneesavesseesseseaeessueeneeen 3

Riechmann v. State,

966 So. 2d 298, 307 (Fla. 2007).........cccccsceccesceeeencuceeesneersueenesaneeanseseneeeeeeeceeas 14

Scott v. United States,

890 F.3d 1289 (11th Cir. 2018)... cee cceeeeseeseeseesessenscencceeeseneceecseeeeeeneeseeeeeteneeees 8, 10

Spann. v. State,

91 So. 3d 812 (Fla. 2012)....... 0. cecccecccccccecceeceseesecaaeeceeceeeeseqecseaaeaeeceeeeeessesaaeaesenneeenaaes 5

Stewart v. United States,

646 F.3d 856 (11th Cir. 2011) ..ccccccccscscceccseecssecsesesseessessseeesucssecensversessavesseesseesssees 13, 14

Tompkins v. Sec’y, Dep’t of Corr.,

557 F.3d 1257 (11th Cir. 2009) 000... cccseeeeceecceccecenececeseeceeeeeecesaeanentensenees 8, 12, 13

Tyler v. Cain,

533 U.S. 656 (2001) 20... cccccssseseeecceceeceecessssccuecseecescesenscaneeaeeeseeseseeetecesaeeeseetenneeeeses 16

United States v. Archer,

531 F.3d 1347 (11th Cir. 2008)... eee eeeeeceeeeeeeseneeneeeeeeeeeeneeeessesesesssseseeeseneeeres 14

United States v. Dubois,

94 F.4th 1284 (11th Cir. 2024) 200... eceeeeeeeeeeeneeeeeneeeeeeseeseeeesseesessesteneeseeeees 15

United States v. Vega-Castillo,

540 F.3d 1235 (Lith Cir. 2008) 00.0.0... ccccceeeeeeeeeeeeenecceaeeeseeeeessanaaaceaeeeseeeeseeeseneraees 15

lv

United States v. Webster,

No. 8:12-CR-426, 2024 WL 1051807 (D. Neb. Mar. 11, 2024).......0000 15

Williams v. Chatman,

510 F.3d 1290 (11th Cir, 2007) ....... ccc. cccccccccecccesseeseeseesessesseneeseessessessesseeseesenevenenens 10

Statutes

QB U.S.C. § 1254 (1) cccscecseccssessucssecssesssessuecssccuessvecsessneceueesuessussusessvecacesucsueearsaseesucesuceseessess 1

28 U.S.C. § 2244 oi cccccccnessneeeeeceseecccsneaseeneeeeeeecnnneeeneeceseesecssneeneeeseseeesensees 11, 12, 16

2B U.S.C. § 2244(b) .cccceccssecsseecsuecsueceseessecereessesssasesersssvessusssucssaserseseresenecsaeessecereceseces 12, 16

28 U.S.C. § 2244(b)(1)—(2) oo... ccc eccccccccceseneceeeeseneeeeeseeaeeeeeeenaaaeesesaaeeseeneaaaeeeeeteeneaeeeessneeees 16

2B U.S.C. § 2244(b)(2)..cseccccsccecceceseecsecsseesuecseessessusssesssecsueessvesecssuversssneesucssessuesseesaees 10, 17

2B U.S.C. § 2244(b)(2)(B)..cceccsecccceccceccecessesssescsucssecsssecssesssuccrecessessauessecssecsacesseesseeerseeen 10

2B U.S.C. § 2244(b)(3)(A)seccecccsecccescceeesecessessecessecssecsssecsuecsasecsucssasessecsasesavesseeravevaveesaneen 10

28 U.S.C. § 2254 oo ccccccscnnsceceeeeeeecescnneaeneeeeeseeeeecanaeeaeeeeeseseseaeaeeeeeseateeeseeneenenes passim

28 U.S.C. § 2254(d)(1) amd (2) ....ccecccccscccceeecccceeeeecenceceeseeaeessensaaeseesenaaeeseeteeteaaeessenseeeees 11

Fla. Stat. § 921.141 (2017) .cccccccccescseseccecssvessccssessscssuccssvessesssucsssessasesseesscessecsatersreanecesees 7

Rules

Federal Rule of Civil Procedure GO(D) ..............cccesssesseeecceececceseeaeesseesecessseeesseseeeseeeees 7,8

CITATION TO OPINION BELOW

The Eleventh Circuit's decision appears as Jennings v. Sec’y, Fla. Dep’t of

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

STATEMENT OF JURISDICTION

The Eleventh Circuit Court of Appeals affirmed the district court's denial of

habeas relief. The instant petition was filed with this Court on January 28, 2025.

Petitioner invokes the jurisdiction of this Court pursuant to 28 U.S.C. § 1254(1).

Respondents agree that the statutory provision sets out the scope of this Court's

certiorari jurisdiction but submits that this case is inappropriate for the exercise of

this Court's discretionary jurisdiction.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Respondents accept Petitioner's statement regarding the applicable

constitutional and statutory provisions involved.

STATEMENT OF THE CASE AND FACTS

Following reversals of his 1980 and 1982 convictions,! Petitioner, Bryan F.

Jennings, in 1986, was tried, convicted, and sentenced to death for first-degree

murder, kidnapping with intent to commit sexual battery, sexual battery, and

burglary in connection with the 1979 abduction and death of six-year old Rebecca

Kunash. In its decision affirming Petitioner's convictions and death sentence, the

Florida Supreme Court summarized the facts of the murder and the facts that

supported the trial court's aggravation and mitigation findings as follows:

In the early morning hours of May 11, 1979, Rebecca Kunash was asleep

in her bed. A nightlight had been left on in her room and her parents

were asleep in another part of the house. Jennings went to her window

and saw Rebecca asleep. He forcibly removed the screen, opened the

window, and climbed into her bedroom. He put his hand over her mouth,

took her to his car and proceeded to an area near the Girard Street Canal

on Merritt Island. He raped Rebecca, severely bruising and lacerating

her vaginal area, using such force that he bruised his penis. In the

course of events, he lifted Rebecca by her legs, brought her back over his

head, and swung her like a sledge- hammer onto the ground fracturing

her skull and causing extensive damage to her brain. While she was still

alive, Jennings took her into the canal and held her head under the

water until she drowned. At the time of her death, Rebecca Kunash was

six (6) years of age.

1 The Florida Supreme Court vacated Petitioner's first conviction and death sentence

("1980 trial") on direct appeal finding Petitioner's confession admitted properly but

determining he had been "denied cross-examination of a vital and material witness,”

and remanding for a new trial. Jennings v. State, 413 So. 2d 24, 25-26 (Fla. 1982)

("Jennings P). After the second trial ("1982 trial"), the Florida Supreme Court

affirmed the conviction and death sentence, rejecting Petitioner's complaint that his

confession was admitted in violation of Edwards v. Arizona, 451 U.S. 477 (1981).

Jennings v. State, 453 So. 2d 1109, 1111 (Fla. 1984) ("Jennings IP). This Court

disagreed and vacated the conviction. Jennings v. Florida, 470 U.S. 1002 (1985)

(mem.). Based on that decision, the Florida Supreme remanded for a new trial.

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

2

Jennings v. State, 512 So. 2d 169, 175-76 (Fla. 1987).

In 1989, Jennings’ motion for postconviction relief was denied. The Florida

Supreme Court affirmed the denial, Jennings v. State, 583 So. 2d 316, 319 (Fla. 1991)

but found that he had been denied public records in error and permitted him time to

file another motion for postconviction relief arising out of the disclosure of additional

public records. After receipt of the State Attorney's trial file, Jennings filed a motion

for postconviction relief, and an evidentiary hearing was held. Again, postconviction

relief was denied, Jennings appealed, and the Florida Supreme Court affirmed.

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

Having been denied relief in state court, Jennings filed a Petition for Writ of

Habeas Corpus in the United States District Court, Northern District of Florida. The

United States District Court denied federal habeas relief. Jennings v. Crosby, 392 F.

Supp. 2d 1312 (N. D. Fla. 2005). The United States Eleventh Circuit Court of Appeals

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

denied on March 31, 2008. Jennings v. McNeil, 552, U.S. 1298 (2008).

Jennings thereafter filed his first successive rule 3.851 motion on April 8, 2008.

This was denied summarily, and the Florida Supreme Court affirmed the trial court's

order denying said motion. Jennings v. State, 36 So. 3d 84 (Fla. 2010).

Subsequently, Jennings filed a second successive postconviction relief motion

on November 27, 2010, raising claims based on Porter v. McCollum, 130 S. Ct. 447

(2009), which the trial court summarily denied. The trial court also denied Jennings’

motion to amend which was addressed to an affidavit signed by trial witness,

Clarence Muszynski. On appeal, the Florida Supreme Court affirmed. Jennings v.

State, 91 So. 3d 132 (Fla. 2012) (unpublished opinion). However, the Florida Supreme

Court gave Jennings 30 days to file another successive motion based on that affidavit

nunc pro tunc to February 28, 2011. Id. at 132.

In response to the Florida Supreme Court’s ruling, Jennings filed his third

successive 3.851 motion on June 25, 2012, alleging discovery of new evidence. After

an evidentiary hearing, the trial court denied said motion by written Order on June

5, 2013, finding that Muszynski’s recantation testimony was “inherently incredible”.

The Florida Supreme Court affirmed on August 28, 2015, and denied rehearing on

January 14, 2016. Jennings v. State, 192 So. 3d 38 (Fla. 2015). The Florida Supreme

Court’s affirmance was based upon the trial court’s credibility findings regarding

unsubstantiated recanting witness testimony from Muszynski, finding:

In this successive postconviction proceeding, Jennings asserts

claims based on new testimony from Clarence Muszynski, who testified

in Jennings’ third retrial as to statements that Jennings made to him.

Specifically, Muszynski testified that Jennings told him

how he had broken into the sleeping victim’s room, taken

her outside and bashed her head on the pavement, driven

her to a canal, raped her, and then held her underwater

until she was drowned and where her body would be

disposed of by “the sharks and the turtles and the fish and

the animals of the sea... .”

Jennings, 512 So. 2d at 172.

In this proceeding, Muszynski testified that he had a deal with

the State to receive favorable treatment for himself and his then-spouse,

which is in direct contradiction to his trial testimony that he had not

made any deals. In all other respects, Muszynski has not varied from his

original trial testimony. Each of his claims on appeal—based on newly

discovered evidence, Brady v. Maryland, 373 S. 83 (1963), and Giglio v.

United States, 405 U.S. 150 (1972)—+relate to this alleged deal with the

State.

In a lengthy order after an evidentiary hearing, the trial court

denied relief, finding that Muszynski’s recantation testimony was

“inherently incredible.” As this Court has observed, “recantations are,

as a general matter, ‘exceedingly unreliable.” Spann v. State, 91 So. 3d

812, 816 (Fla. 2012) (quoting Bell v. State, 90 So. 2d 704, 705 (Fla. 1956)).

Because the trial judge “has a superior vantage point to see and hear

the witnesses presenting the conflicting testimony,” this Court is “highly

deferential” to the trial court’s “determination relating to the credibility

of a recantation.” Id. This Court reviews the trial court’s findings on

questions of fact, the credibility of witnesses, and the weight of the

evidence for competent, substantial evidence. Melendez v. State, 718 So.

2d 746, 747-48 (Fla. 1998).

In this case, the circuit court concluded that the testimony given

by Muszynski lacked credibility. In making this assessment, the circuit

court set forth the numerous ways in which Muszynski’s testimony

during the evidentiary hearing conflicted, stating as follows:

This Court has carefully weighed and _ considered

Muszynski’s conflicting testimony at the evidentiary

hearing. Muszynski testified that Jennings spoke to him

and confessed to him before Muszynski allegedly spoke to

the State about a bargain. Muszynski testified that he

spoke to attorney Howard Johnson from the State

Attorney’s Office before he gave the statement of June 25,

1979, to Wayne Porter, detailing the Defendant’s

confession, and before he started to work to get Defendant

Jennings’ trust.

Muszynski then testified that Agent Wayne Porter was

“the first one that came and seen me on a tape recorder” for

the interview of June 25, 1979. He testified this was before

he talked to Howard Johnson (the assistant state attorney

who set up his “deal”).

On October 23, 2012, Muszynski’s testimony continued. He

stated that he “had all conversations with Howard Johnson

and Wayne Porter” on behalf of the State.

Clearly, this statement is also in conflict with his affidavit,

wherein he claimed that he also had many conversations

with assistant state attorney Chris White about

befriending Jennings and getting guidance about what

information the State was seeking. He also testified that

Mr. White never came to see him in Panama (Panama City

was the site of the 1986 trial).

Order Denying Postconviction Relief at 10-11. The circuit court then

addressed Muszynski's credibility as follows:

The Court finds that Muszynski’s “recantation” testimony

and allegations of a deal to testify against Defendant

Jennings are inherently incredible. The Court observed

Muszynski furtively looking around the courtroom, as if to

ensure that all eyes were on him and his grandstanding

style testimony. At times, he paid little apparent attention

to the questions asked of him but instead launched into a

lengthy bragging soliloquy of his adventures as “a 007

agent” and his contacts with assistant state attorney

“Howard Johnson” and with former State Attorney

Douglas Cheshire (now deceased). His testimony was

rambling and disjointed. Throughout the proceedings, he

regularly sought to please defense counsel, seeking his

approval after answering questions. His recollection of

dates and the series of events was never absolute; instead,

it ebbed and flowered, with no coherent thread. Based upon

the demeanor and presentation of Clarence Muszynski, the

Court finds that his testimony at the evidentiary hearing

lacks credibility. As Mr. Muszynski himself stated, “It’s

unreal, man.”

Id. at 11-12. Importantly, Muszynski testified that he made a deal with

a prosecutor named “Howard Johnson,” but presented no evidence to

show that such a person had ever worked at the State Attorney's Office.

In fact, the State presented two witnesses to establish the opposite: that

no one by that name worked in the State Attorney’s Office during the

time in question.

The circuit court carefully reviewed each of the additional

witnesses that Jennings presented and determined that such testimony

did not add any support to Jennings’ allegations. Upon a full review of

the record, we conclude that competent, substantial evidence supports

the circuit court’s credibility assessments and factual determinations

and that the circuit court did not err in its legal conclusions.

Accordingly, we affirm the circuit court's order denying the

successive motion for postconviction relief.

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

On October 20, 2016, Jennings filed his fourth successive motion to vacate his

death sentence alleging entitlement to relief pursuant to the recent Hurst? decisions

as well as Florida’s new sentencing statute. The circuit court denied the motion to

vacate, and Jennings appealed to the Florida Supreme Court. On October 4, 2018,

the Florida Supreme Court issued an opinion affirming the denial of the motion to

vacate. Jennings v. State, 265 So. 3d 460 (Fla. 2018), cert. denied, 139 S. Ct. 2019

(2019).

Jennings returned to federal court in December 2018, filing a petition under

28 USC § 2254. Jennings included Brady and Giglio claims and argued that this

petition was not second or successive under Panetti v. Quarterman, 551 U.S. 930

(2007). He also sought, in the alternative, relief under Federal Rule of Civil Procedure

60(b) from the district court’s judgment denying his first § 2254 petition based on his

new Brady and Giglio claims. Jennings v. Inch, Case No. 5:18-cv-00281-RH-MJF

(N.D. Fla. Dec. 28, 2018), NDFL-ECF 1.

On March 6, 2020, the district court concluded that the law of the circuit

\

required the dismissal of Jennings’ petition for lack of subject-matter jurisdiction. See

2 While Jennings’ motion for rehearing was pending, the Florida Supreme Court

issued Hurst v. Florida, 136 S. Ct. 616 (2016). Within a few months, the Florida

Supreme Court rendered Hurst v. State, 202 So. 3d 40 (Fla. 2016), cert denied, 137

S. Ct. 2161 (2017), after which the state legislature revised Florida’s capital

sentencing statute pursuant to the high court’s directives. Perry v. State, 210 So. 3d

630 (Fla. 2016), Fla. Stat. § 921.141 (2017).

Tompkins v. Sec’y, Dep’t of Corr., 557 F.3d 1257, 1259-60 (11th Cir. 2009) (per

curiam). The court also denied Jennings’ Rule 60(b) motion and denied a certificate

of appealability. NDFL-ECF 25. On June 10, 2020, the district court denied Jennings’

motion to alter or amend this new judgment. NDFL-ECF 28. Jennings filed a notice

of appeal on July 7, 2020. NDFL-ECF 29.

On July 23, 2020, Jennings filed an application for a COA, which was denied

by the Eleventh Circuit on January 13, 2021. CA11-ECF 6, 11. Jennings filed a

motion for reconsideration on February 3, 2021. CA11-ECF 12. On May 8, 2023, the

Eleventh Circuit denied Jennings’ application as it related to his 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 entered its judgment

affirming the district court's dismissal of Jennings' petition:

Because Jennings did not move in this Court for an order authorizing

consideration of his second-in-time § 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). If it is, then the district court

correctly dismissed the petition for a lack of subject-matter jurisdiction.

If it is not, then the district court erred.

In answering this question, we are not “writing on a clean slate.” Scott

v. United States, 890 F.3d 1239, 1243 (11th Cir. 2018). Indeed, “our

Circuit has already written all over this slate.” Jd. And the answer is

clear: a second-in-time § 2254 petition raising Brady and Giglio

claims is a second or successive petition subject to § 2244(b)’s

restrictions. As the district court recognized, we decided this issue in

Tompkins, 557 F.3d at 1260.

Jennings v. Sec'y, Fla. Dep't of Corr., 108 F.4th 1299, 1302 (11th Cir. 2024) (emphasis

added). On September 25, 2024, Jennings’ petition for en banc and panel rehearing

was denied. CA11-ECF 43.

Jennings now seeks a writ of certiorari from this Court.

REASONS FOR DENYING THE WRIT

Jennings’ second-in-time habeas petition is “Second or

Successive” within the meaning of 28 U.S.C. § 2244(b)(2).

I. Introduction

This Court reserves its certiorari jurisdiction primarily to resolve conflicts

among the United States courts of appeals and state courts "concerning the meaning

of provisions of federal law." Braxton v. United States, 500 U.S. 344, 347 (1991). There

is no disagreement that Tompkins is binding precedent in the Eleventh Circuit.? Nor

is there any circuit split over the issue of whether Panett: made the second or

successive application requirements inapplicable to Brady and Giglio claims. See

Evans v. Smith, 220 F.3d 306, 324 (4th Cir. 2000) (concluding pre-Panetti that Brady

claims are subject to § 2244(b)(2)(B)’s second or successive application restrictions).

As such, before filing his second or successive § 2254 petition in the district

court, Jennings was required to move for an order authorizing the district court to

consider the application. 28 U.S.C. § 2244(b)(8)(A). Because Jennings failed to obtain

an order authorizing the district court to consider his petition, see 28 U.S.C.

§ 22.44(b)(3)(A), the district court was correct to dismiss it for lack of subject-matter

jurisdiction. See Williams v. Chatman, 510 F.3d 1290,1295 (11th Cir. 2007).

Jennings’ argument does not identify any federal or state court conflict and

instead amounts to nothing more than a meritless disagreement regarding the

8 Scott v. United States, 890 F.3d 1239, 1243 (11th Cir. 2018); Jimenez v. Sec’y, Fla.

Dep’t of Corr., 758 Fed. Appx. 682 (11th Cir. 2018).

4 Jennings does not argue that his case meets one of the exceptions set out in §

2244(b)(2).

10

Eleventh Circuit's application of this Court's precedent. See Braxton; see also

Supreme Court Rule 10. None of Rule 10’s considerations apply to the claims advanced

by Jennings.

Even if this Court were to consider addressing the merits of Petitioner's

argument, this case is a poor vehicle for resolving the alleged conflict. As to the merits

of the case, the district court held:

Jurists of reason also could debate whether (or perhaps agree that) the

state violated Brady by withholding the information now at issue. Even

so, the evidence against Mr. Jennings was strong. It is not fairly

debatable whether this information, if available at trial, would have

changed the verdict or sentence, or whether this violation is sufficient to

undermine confidence in the outcome. Nor is it fairly debatable whether,

if this petition is addressed on the merits, Mr. Jennings will be entitled

to relief under the deferential standard that applies under 28 U.S.C. §

2254(d)(1) and (2). He will not be.

(NDFL-ECF 25 at 9).

Accordingly, Jennings’ request for certiorari should be denied.

A. Panetti v. Quarterman

Jennings fully acknowledges that his petition is his second-in-time petition

brought under 28 U.S.C. § 2254. He argues that his petition falls outside of § 2244’s

ambit because it falls within an exception to the prohibition on successive petitions

established in Panetti v. Quarterman, 551 U.S. 980, 945 (2007). In Panett, this Court

held that a ripe Ford® claim brought for the first time in a petition filed after the

federal courts have already rejected the prisoner's initial habeas application is not

“successive, and thus § 2244(b) does not apply.

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

11

Jennings does not meet such an exception. Unlike the Ford claims at issue in

Panetti, Jennings’ Brady/Giglio claims were ripe when his initial petition was filed,

as the events giving rise to the claim had already occurred.

B. The Eleventh Circuit's holding in Tompkins is consistent with this Court’s

interpretation of Panetti and § 2244

In Panetti, this Court created an exception to the prohibition on second habeas

petitions for unripe claims. But as the Eleventh Circuit has explained, unripe claims

that fall under the Panetti exception are rare. Tompkins v. Sec'y, Dept. of Corr., 557

F.3d 1257, 1260 (11th Cir. 2009) (stating that Panett: does not allow a petitioner to

circumvent the stringent requirements placed on successive habeas petitions even

when they rely upon new Brady/Giglio claims). The Eleventh Circuit explained that

Panetti’s holding was limited to Ford claims and other types of claims where the

claim is not ripe until a date certain. The Panetti exception, however, did not

extend to other types of claims where ripeness is not an issue. The Eleventh Circuit

explained that 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.” Tompkins, 557 F.3d at 1260. Ripeness does not mean failure to

uncover at an earlier date.

Unlike a Ford incompetency-to-be-executed claim, the Brady and Giglio claims

Jennings wants to raise are claims that can be and routinely are raised in initial

habeas petitions. The violation of constitutional rights asserted in these kinds of

claims occur, if at all, at trial or sentencing and are ripe for inclusion in a first

petition. As noted by Tompkins:

12

Cutting and pasting language from the Panetti opinion and contorting

that language's meaning, Tompkins would have us hold that any claim

based on new evidence is not “ripe” for presentation until the evidence

is discovered, even if that discovery comes years after the initial habeas

petition is filed. That is not what the Supreme Court in Panetti meant

by “ripe.” Mental competency to be executed is measured at the time of

execution, not years before then. A claim that a death row inmate is not

mentally competent means nothing unless the time for execution is

drawing nigh. See id. at 2854 (explaining that it is not possible to resolve

a petitioner's Ford claim “before execution is imminent”). It is not ripe

years before the time of execution because mental conditions of

prisoners vary over time. See id. at 2852. 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.

Tompkins, 557 F.3d at 1260.

In Stewart, a defendant, after filing an initial § 2255 petition, obtained vacatur

of a state conviction that was a necessary predicate for his sentence as a career

offender under the Armed Career Criminal Act. Stewart v. United States, 646 F.3d

856, 858 (11th Cir. 2011). After getting the state conviction vacated, Stewart moved

to correct his federal sentence through a second habeas petition, arguing that his

career offender sentence was rendered invalid without the predicate conviction. Id.

In explaining why Stewart could bring his second motion to vacate without its being

considered “second or successive,” this Court said:

“[C]laims based on a factual predicate not previously discoverable are

successive,” but “[ilf ... the purported defect did not arise, or the claim

did not ripen, until after the conclusion of the previous petition, the later

petition based on that defect may be non-successive.” Leal Garcia, 573

F.3d at 221, 222. We are not faced with a claim based on facts that were

merely undiscoverable. Rather, Stewart has presented a claim, the basis

for which did not exist before the vacatur of his predicate state

13

convictions—after his first § 2255 motion had already been filed and

dismissed.

Stewart, 646 F.3d at 863.

The Stewart decision reiterates that a second habeas petition will not avoid

being characterized as “second or successive” simply because the factual predicate of

a claim was previously undiscoverable. Rather, it is only defects that were wholly

nonexistent at the time the petitioner filed his initial motion to vacate that will

avoid being characterized as “second or successive” in a subsequent motion to vacate.

Jennings’ broad and incorrect Panetti interpretation would open the gates to

successive habeas litigation in district courts and would be counter to the finality that

AEDPA was designed to promote. Jennings was long aware of Clarence Muszynski’s

ity

role in his case and there was no reason Muszynski’s “recantation”—incredible as it

was—could not have been discovered and raised in his initial habeas petition. Cf.

Riechmann v. State, 966 So. 2d 298, 307 (Fla. 2007) (“In short, the record is clear that

the defense had long been aware of Veski’s role in the case, including his claims of

pressure from the prosecution. However, no legal justification for failing to assert this

claim at an earlier time was offered to the trial court below to overcome the

procedural bar for claims raised in successive postconviction motions.”).

C. Tompkins remains the law of the Eleventh Circuit

Under the prior-panel-precedent rule, Tompkins’ holding “is binding on all

subsequent panels unless and until it is overruled or undermined to the point of

abrogation by the Supreme Court or by this court sitting en banc.” United States v.

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). In foreclosing Jennings’ argument that

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Banister v. Davis, 590 U.S. 504 (2020), abrogated Tompkins, the Eleventh Circuit

found that “[i]Jn Banister, the Supreme Court had no occasion to pass on the question

we answered in Tompkins, and no occasion to disagree with the answer we provided.

Thus, it cannot be said that Banister abrogated Tompkins.” NDFL-ECF 25 at 13.

For a Supreme Court decision to undermine panel precedent to the point of

abrogation, the “decision must be clearly on point” and “clearly contrary” to the panel

precedent. Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292

(11th Cir. 2003) (emphasis in original) (quoting NLRB v. Datapoint Corp., 642 F.2d

123, 129 (5th Cir. Unit A Apr. 1981)). If, as in this case, the Supreme Court never

discussed the Eleventh Circuit's precedent or commented on the precise issue before

the prior panel, the precedent remains binding. United States v. Dubois, 94 F.4th

1284, 1293 (11th Cir. 2024) (alteration in the original) (quoting United Siates v. Vega-

Castillo, 540 F.3d 1235, 1238 (11th Cir. 2008)); United States v. Dubois, 94 F.4th

1284, 1293 (11 Cir. 2024) (quoting Del Castillo v. Sec’y, Fla. Dep’t of Health, 26 F.4th

1214, 1223 (11th Cir. 2022)).

Banister applied its methodology in the context of “resolv[ing] a Circuit split

about whether a Rule 59(e) motion to alter or amend a habeas court’s judgment counts

as a second or successive habeas application.” 590 U.S. at 511. In limiting the

6 Cases citing the Banister decision have been in relation to Rule 59(e) motions:

United States v. Webster, No. 8:12-CR-426, 2024 WL 1051807, at *1 (D. Neb. Mar.

11, 2024); Hutchins v. Lizarraga, No. 17-CV-03921-BLF, 2021 WL 326909, at *1 (N.D.

Cal. Feb. 1, 2021); Lindsey v. Jenkins, No. 21-3745, 2022 WL 20854727, at *7 (6th

Cir. Dec. 1, 2022).

15

applicability of Banister to Jennings case, the Eleventh Circuit noted the significant

differences between a second-in-time § 2254 petition and a Rule 59(e) motion.

For example, “[iJn timing and substance, a Rule 59(e) motion hews

closely to the initial application” and “[s]uch a motion does not enable a

prisoner to abuse the habeas process by stringing out his claims over the

years.” 590 U.S. at 517. A movant has only twenty-eight days after entry

of judgment to file a motion to alter or amend the judgment under Rule

59(e) and he cannot raise any new issues that could have been raised

before judgment was entered. See id. at 516. A second-in-time § 2254

petition, however, is often not so closely tied to the initial petition. For

example, while the district court in Banister adjudicated the petitioner's

Rule 59(e) motion in five days, id. at 517, Jennings filed the instant

petition, which raised new issues, over ten years after his first round of

collateral litigation in federal court ended.

NDFL-ECF 25 at 13-14. These differences mean that Banister cannot be

understood to have abrogated Tompkins.

D. 28 U.S.C. § 2244

Jennings was not barred from litigating his Brady/Giglio claims; nor are any

other petitioners. The habeas statute, as amended by the AEDPA, sharply limits a

federal habeas court’s consideration of any “second or successive” habeas petitions.

Tyler v. Cain, 533 U.S. 656, 661 (2001), but it does not foreclose relief.

In accordance with the Antiterrorism and Effective Death Penalty Act of 1996,

as codified at 28 U.S.C. § 2244(b), before leave to file a second or successive petition

can be granted by the United States Court of Appeals, it is the applicant's burden to

make a prima facie showing that satisfies the conditions in 28 U.S.C. § 2244(b),

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

under section 2254 that was not presented in a prior application shall

be dismissed unless—

16

(A) the applicant shows that the claim relies on a new rule

of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was

previously unavailable; or

(B) @) the factual predicate for the claim could not have

been discovered previously through the exercise of due

diligence; and

(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.

28 U.S.C. § 2244(b)(1)-(2).

Pursuant to 28 U.S.C. § 2244(b)(2), Jennings had the opportunity to move in

the Eleventh Circuit for an order authorizing consideration of his second-in-time

§ 2254 petition before he filed his petition in the district court. He chose not to. The

restriction on second-in-time petitions is not “illogical” just because Jennings is

unable to meet the gatekeeping requirements of the rule. Rather, cases like Jennings’

are the reason the rule is in place.’

This Court should deny the Writ.

7 Jennings’ broad and incorrect Panetti interpretation would open the gates to

successive habeas litigation in district courts and would be counter to the finality that

AEDPA was designed to promote. Jennings was long aware of this witnesses role in

the case in his case and there was no adequate reason his ‘recantation,’ incredible as

it was, was not raised in his initial habeas petition. Riechmann v. State, 966 So. 2d

298, 307 (Fla. 2007) (“In short, the record is clear that the defense had long been

aware of Veski’s role in the case, including his claims of pressure from the

prosecution. However, no legal justification for failing to assert this claim at an

earlier time was offered to the trial court below to overcome the procedural bar for

claims raised in successive postconviction motions.”).

17

CONCLUSION

Based on the foregoing, Respondents respectfully request that this Court

DENY the petition for writ of certiorari.

Respectfully submitted,

JAMES UTHMEIE

ATTORNEY GEN RAL OF FLORIDA

a

~~, CARLA SUZANNE BECHARD*

Associate Deputy Attorney General

Florida Bar No. 147745

*Counsel of Record

Doris Meacham

Senior Assistant Attorney General

Fla. Bar #63265

Office of the Attorney General

3507 East Frontage Road, Suite 200

Tampa, Florida 33607

Telephone: (813) 287-7900

carlasuzanne.bechard@myfloridalegal.com

doris.meacham@myfloridalegal.com

capapp@myfloridalegal.com

18