Elizabeth Franklin-Best

Appellate lawyer

Elizabeth Franklin-Best, a criminal appellate lawyer seeking freedom for her clients.  Focused exclusively on criminal appeals in both state and federal courts.

Scott v. U.S., Eleventh Circuit Court of Appeals, Filed May 23, 2018: Brady Claims are always “Second and Successive” Under the AEDPA… Or Are They?

June 6th, 2018
Elizabeth Franklin-Best

In Scott v. U.S., the Eleventh Circuit Court of Appeals held that, when a petitioner has previously filed a post-conviction relief claim under 28 U.S.C. § 2254 or 2255, he is barred from filing another petition even when the government withheld Brady material until after the first petition was filed…
The Court spent most of the opinion explaining why Scott does have a claim that should be heard by the Courts and why it would have been impossible for him to file the claim before he knew that it existed. They concluded that U.S. Supreme Court caselaw mandates that he should be able to file his claim under these circumstances, but –

The Court ultimately held that it was bound by a previous panel’s decision in Tompkins v. Secretary, Dpt. Of Corrections, which held that claims like Scott’s are prohibited.
Although the Scott Court explained in very clear terms why Scott is entitled to file his PCR claim, they are bound to follow the previous panel’s holding in Tompkins unless the Eleventh Circuit hears the case en banc (all the members of the Eleventh Circuit instead of a smaller panel) and reverses Tompkins.

What is an Actionable Brady Violation?
The Court leads with a powerful quote from the 1935 case of Berger v. U.S.:

Prosecutors are “servant[s] of the law” and should “prosecute with earnestness and vigor.” Berger v. United States, 295 U.S. 78, 88 (1935). But though the prosecutor “may strike hard blows, he is not at liberty to strike foul ones.” Id.

Powerful, but meaningless, since, in this case, the Court may have allowed the prosecutor to “strike a foul blow” without consequence.

Not every Brady violation is “actionable.” If the evidence that the government withheld would not have made a difference at the trial, the Courts will say “no harm done,” and deny the petition. An actionable Brady violation is where the evidence that the government withheld reasonably could have changed the outcome of the trial – depriving the defendant of a fundamentally fair trial.

What was the Alleged Brady Violation in Scott’s Case?

First, what did the government disclose?

• The informant that set up the drug deal was working for the government – the informant was selling drugs to Scott and not the other way around…
• The informant had a previous conviction for distribution of heroin;
• The DEA had paid the informant more than $168,000 for his work as an informant;
• They had paid the informant $3500 for Scott’s case; and
• They intended to pay the informant more money for Scott’s case after conviction, including more than $10,000 from forfeiture money seized from Scott.

The government elicited testimony from the informant that he had always told the truth in the past when testifying as an informant, and that he had never given false or misleading testimony or information.
What they did not say is that the informant had lied to law enforcement in the past, that he had stolen cocaine from a drug dealer while working as an informant in another jurisdiction, and that the prosecutor in the other jurisdiction had moved him to “restricted use,” meaning they did not trust him to testify at trial.
Scott was sentenced to life in prison, and the prosecutors waited nearly seven years to disclose the Brady material – after he had filed his first post-conviction relief petition.

AEDPA Gatekeeping Provision

The AEDPA prohibits “second or successive” motions to vacate unless they:
1. Identify newly discovered evidence that would “establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense;” or
2. Are based on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”
Because neither of these apply to Scott’s situation, the Court then asks, is this even a “second or successive” motion?

The Abuse-of-the-Writ Doctrine

The Courts look to pre-AEDPA caselaw to determine whether a PCR claim is “second or successive,” including the “Abuse-of-the-Writ Doctrine.”
In Panetti v. Quarterman, 551 U.S. 930, 943 (2007), the U.S. Supreme Court held that a second petition filed based on a claim of mental competence to be executed, where the basis of the claim did not arise until after the first PCR petition had been filed, was not “second or successive” for purposes of the AEDPA.
“[I]f the petitioner had no fair opportunity to raise the claim in the prior application, a subsequent application raising that claim is not ‘second or successive,’ and [AEDPA’s] bar does not apply.”
That makes sense… except another panel of the Eleventh Circuit had previously held in Tompkins that Panetti’s reasoning only applies to competency claims and that Brady claims will always be “second or successive,” even if the petitioner was unaware of the claim due to the government’s actions in concealing the information…

No Relief for Scott – Will the Eleventh Circuit Allow Tompkins to Stand?

The Scott panel ultimately held that the Tompkins panel was wrong, that Panetti was not limited to competency claims, and that Brady claims are indistinguishable from competency claims for purposes of determining whether the claim is “second or successive.”
Then they ruled against Scott, affirming his life sentence unless the full Eleventh Circuit takes up the case and fixes it…