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                                                                                  [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                 Nos. 15-11377; 16-11950
                               ________________________

         D.C. Docket Nos. 3:11-cv-01144-TJC-PDB; 3:06-cv-00906-TJC-PDB



GINO VELEZ SCOTT,

                                                                        Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

                                                                       Respondent-Appellee.

                               ________________________

                     Appeals from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                       (May 23, 2018)

Before ROSENBAUM and JILL PRYOR, Circuit Judges, and BARTLE, * District
Judge.


         *
        The Honorable Harvey Bartle III, United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
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ROSENBAUM, Circuit Judge:

      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.

      More than fifty years ago, Brady v. Maryland, 373 U.S. 83, 87 (1963),

established that a prosecutor’s suppression of material evidence favorable to the

accused amounts to a foul blow.          An actionable Brady violation—where the

government withholds evidence that reasonably probably changes the outcome of a

defendant’s trial—deprives the defendant of a fundamentally fair trial.        Yet

because of the nature of a Brady violation, a defendant, through no fault of his

own, may not learn that such a violation even occurred until years after his

conviction has become final and he has already filed a motion for post-conviction

relief concerning other matters.

      Meanwhile, the Antiterrorism and Effective Death Penalty Act (“AEDPA”)

imposes limitations on post-conviction relief a prisoner may obtain. This case

examines whether under those limitations, a Brady claim can ever be cognizable in

a second-in-time post-conviction motion under 28 U.S.C. § 2255 if it does not

meet the criteria under the statute’s “gatekeeping” provision, 28 U.S.C. § 2255(h).

And that presents a question of first impression in this Circuit.


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      But that the case involves an issue of first impression does not necessarily

mean we are writing on a clean slate. As it turns out, our Circuit has already

written all over this slate. Indeed, we decided this issue’s fraternal twin—whether

a Brady claim can ever be cognizable in a second-in-time 28 U.S.C. § 2254

petition if it does not meet any of the criteria under 28 U.S.C. § 2244(b)(3)(A)—in

Tompkins v. Secretary, Department of Corrections, 557 F.3d 1257 (11th Cir.

2009). Because we cannot distinguish Tompkins’s reasoning from the facts or law

at issue here, our Circuit’s prior-precedent rule binds us to apply Tompkins’s rule:

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.

      Though we have great respect for our colleagues, we think Tompkins got it

wrong: Tompkins’s rule eliminates the sole fair opportunity for these petitioners to

obtain relief. In our view, Supreme Court precedent, the nature of the right at stake

here (the right to a fundamentally fair trial), and the Suspension Clause of the U.S.

Constitution, Art. I, § 9, cl. 2, do not allow this.      Instead, they require the

conclusion that a second-in-time collateral claim based on a newly revealed

actionable Brady violation is not second-or-successive for purposes of AEDPA.

Consequently, such a claim is cognizable, regardless of whether it meets AEDPA’s

second-or-successive gatekeeping criteria.

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       Petitioner-Appellant Gino Scott’s Brady claim may or may not be an

actionable Brady violation. But we think that the district court in the first instance

should have the chance to address that question by determining whether Scott’s

Brady claim is, in fact, actionable—a question the district court never had reason to

reach. Tompkins’s rule precludes this from happening because it prohibits second-

in-time collateral petitions based on all types of Brady claims—actionable and

inactionable, alike—simply because they are Brady claims.

       Establishing the correct rule and framework for determining whether any

particular second-in-time collateral motion based on a Brady claim is cognizable is

critically important to maintaining the integrity of our judicial system.                    No

conviction resulting from a fundamentally unfair trial should be permitted to

stand. 1   And when a petitioner could not have reasonably been expected to

discover an actionable Brady violation before filing his first federal collateral-

review motion, precluding the filing of a second-in-time petition addressing the

newly discovered violation is doubly wrong. 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. This not only corrodes faith in our system of

justice, but it undermines justice itself, and it cannot be allowed. So we urge the

       1
        See generally Angela J. Davis, The Legal Profession’s Failure to Discipline Unethical
Prosecutors, 36 Hofstra L. Rev. 275, 279-80 (2007) (collecting studies finding alarming rates of
Brady violations resulting in criminal convictions).

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Court to rehear this case en banc to establish the rule that our Constitution and

Supreme Court precedent require.

                                          I.

       In 2003, a grand jury indicted Scott and his codefendant Jose Tamayo for

conspiracy to possess with intent to distribute at least five kilograms of cocaine, in

violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. Tamayo pled guilty, but Scott

elected to go to trial.

       At trial, the government presented evidence that Scott and Tamayo, longtime

friends who made occasional drug deals, agreed with each other to buy cocaine

from a couple of dealers in Jacksonville, Florida. Under the plan, Scott would give

Tamayo cash, and Tamayo would drive from their hometown of Valdosta,

Georgia, down to Jacksonville to make the purchase. To ensure the dealers’ bona

fides, Scott first arranged to meet one of them before any money changed hands.

But unbeknownst to Scott and Tamayo, the purported cocaine dealer he met was

actually a government informant named Freddy Pena.

       Pena did his job well, and Scott was satisfied. So Scott gave Tamayo

$54,000 in cash to make the purchase. Tamayo then drove to Jacksonville and met

Pena. No sooner did they convene than law enforcement arrived on the scene and

arrested Tamayo.




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          Law enforcement presented Tamayo with an offer to cooperate, and he

agreed. At their direction, Tamayo made several recorded phone calls to Scott in

which Scott incriminated himself in the deal. Law enforcement then arrested

Scott, too, charging him with conspiracy to possess cocaine for distribution.

          To prove its case, among other evidence, the government called two DEA

agents who showed the jury wads of $100 bills confiscated from Scott upon his

arrest.

          The government also presented Tamayo. He testified that he and Scott went

together to the pre-purchase meetings with Pena, that Scott gave him the $54,000

to purchase the cocaine, and that after getting arrested, Tamayo made a number of

recorded phone calls to Scott in which Scott made incriminating statements. The

government also played recordings of those phone calls for the jury.

          Besides this evidence, the government put on Pena to testify about his pre-

purchase meeting with Scott. In its direct examination of Pena, the government

prompted him to disclose four items of information that prosecutors had previously

revealed to Scott through pretrial disclosures of evidence tending to impeach Pena,

disclosures required under Giglio v. United States, 405 U.S. 150 (1972). Those

four items included the following:        (1) that Pena was convicted in 1996 for

conspiring to distribute heroin, (2) that the DEA had paid Pena more than $168,000

for cooperation on about sixteen cases since 2001, (3) that Pena had been paid

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$3,500 for Scott’s case so far, and (4) that Pena would likely receive additional

payment in the future.

      To offset any negative effect of Pena’s answers to these questions, the

government also asked Pena whether he had ever given testimony or information

to the DEA that was “false or misleading,” to which Pena replied, “No, sir.” Then

the government inquired as to whether Pena had told the truth in his past testimony

as an informant. Pena answered, “Always.”

      As it turns out, Pena’s answers to these questions were false. But as we

explain later, many years passed before the prosecuting U.S. Attorney’s Office

realized that the government was in possession of information demonstrating the

falsity of Pena’s answers and therefore before the prosecuting U.S. Attorney’s

Office disclosed this information to Scott.

      In the meantime, and without any knowledge of this information during the

trial, on cross-examination, Scott’s attorney reiterated the details of Pena’s heroin-

trafficking conviction and emphasized how Pena benefited from working as an

informant. Pena acknowledged that he stood to receive more than $10,000 from

the drug money seized from Scott. He also agreed that for him, the alternative to

working as an informant would be to make ends meet through strenuous manual

labor. At no point did Scott’s attorney confront Pena about his past truthfulness in

other cases.

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      In its closing argument, the prosecution acknowledged Pena’s monetary

motive for testifying against Scott. But the prosecution emphasized that Pena “had

performed successfully for DEA in the past and they continued to use him.”

Scott’s attorney addressed Pena only briefly, noting that Pena needed the money he

received working as a government informant because the job was one of only a

few career options he had as a convicted felon. The jury convicted Scott, and the

district court sentenced him to life in prison.

                                          II.

      Soon after his conviction, Scott filed a direct appeal. United States v. Scott,

136 F. App’x 273 (11th Cir. 2005). In his appeal, Scott raised a number of issues,

including, as relevant here, a claim that his trial counsel had been ineffective for

failing to conduct an adequate investigation of Pena’s background. Id. at 275. We

affirmed Scott’s conviction, though we declined to address his ineffective-

assistance claim because the record on that issue had not been developed at that

point. Id. at 275, 279. Scott sought certiorari, and the Supreme Court denied his

petition on October 17, 2005. See Scott v. United States, 546 U.S. 970 (2005).

      In 2006, Scott filed his first motion to vacate under 28 U.S.C. § 2255 (the

“2006 Motion”). Among other claims, Scott again argued that his trial counsel was

constitutionally ineffective under Strickland v. Washington, 466 U.S. 668 (1984),

for failing to properly investigate Pena ahead of trial. The district court denied the

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claim. Notably, however, it concluded that even if his trial counsel did exhibit

deficient performance, Scott could not show that he was prejudiced because he

“fail[ed] to show what additional information could have been uncovered to further

impeach the witness at trial.” Scott appealed on other grounds, and we affirmed.

See Scott v. United States, 325 F. App’x 822, 825 (11th Cir. 2009).

      Roughly five years later, in the spring of 2011, Scott’s prosecutors notified

the district court of impeachment information about Pena purportedly unknown to

them at the time of Scott’s trial. Federal prosecutors in another jurisdiction had

recently advised them of the following: (1) Pena lied to law enforcement in 1996

when he was arrested for conspiracy to distribute heroin; (2) Pena admitted to

Tampa DEA agents in 2002 that he had stolen cocaine from a drug dealer the year

before; and (3) as a result of his admission in 2002, though no charges were

brought against him, a prosecutor at the time said he would be hesitant to use Pena

in future cases, and the Tampa DEA moved Pena to “restricted use.” Scott’s

prosecutors described their failure to include this among their required pre-trial

disclosures as “inadvertent,” maintaining that they were “unaware of this

information until almost 7 years after the trial.”

      Based on this information, on November 17, 2011, Scott filed another

motion under § 2255 to vacate his conviction and sentence (“2011 Motion”). In

his 2011 Motion, Scott asserted for the first time that the Government had obtained

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his conviction by violating Brady, 373 U.S. 83, and Giglio, 405 U.S. at 150. Both

of these claims relied on the Government’s 2011 disclosure of evidence relating to

Pena. Scott asserted that had the government before his trial turned over the

evidence disclosed in 2011, it is reasonably probable that he would not have been

convicted.

      In explaining how the government’s failure to disclose the information

affected his trial, Scott pointed to Pena’s statement that he had never given “false

or misleading” testimony during his time as an informant. He complained that in

its closing remarks at trial, the government argued “that although Pena had been

convicted of conspiracy to distribute heroin in the 1990s, he had paid his debt to

society, accepted responsibility, and then moved on into this line of work that

involved essentially working with DEA in 2001.” Indeed, Scott emphasized, the

government represented there was “no question that Pena had performed

successfully for DEA in the past and they continued to use him.” But based on the

evidence the government disclosed in 2011, Scott argued that Pena’s testimony and

the government’s statements at trial were false, and the government knew or

should have known this at the time. Finally, Scott urged that the testimony and

statements were not harmless beyond a reasonable doubt.

      To explain his failure to raise these issues on direct appeal, Scott explained

that he was not aware of the information at the time. And because the information

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was “known only to the government” as of the time of trial, and the government

had assured Scott and the trial court that it had turned over all Brady material,

Scott reasoned, he could not have discovered the recently disclosed information

earlier through the exercise of due diligence.

      The government moved to dismiss Scott’s 2011 Motion, asserting it was

barred as “second or successive” under 28 U.S.C. § 2255(h). The district court

agreed, concluding it was bound by our decision in Tompkins, 557 F.3d 1257. In

Tompkins, a panel of this Court held that a second-in-time habeas petition raising

claims under Brady and Giglio and brought under 28 U.S.C. § 2254 always counts

as “second or successive” and is therefore subject to AEDPA’s gatekeeping

restrictions on second or successive petitions.

      Though the district court dismissed Scott’s 2011 Motion, it granted Scott’s

alternative motion to reopen his original 2006 Motion pursuant to Federal Rule of

Civil Procedure 60(b)(3), which permits a court to reopen a final judgment on

various grounds, including “fraud . . . , misrepresentation, or misconduct by an

opposing party.” The court then reevaluated Scott’s 2006 Motion in light of the

new information about Pena and once again denied it. In reconsidering Scott’s

Strickland claim in light of the newly revealed evidence, the district court

concluded that Scott’s trial counsel did not exhibit constitutionally deficient




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performance in violation of Strickland by failing to conduct further investigation of

Pena. The court did not address Strickland’s prejudice prong. Scott then appealed.

                                        III.

      “In an appeal challenging a § 2255 ruling, we review legal issues de novo

and factual findings for clear error.” Murphy v. United States, 634 F.3d 1303,

1306 (11th Cir. 2011). We review a district court’s order on a Rule 60(b)(3)

motion for abuse of discretion. Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co.,

198 F.3d 1332, 1338 (11th Cir. 1999).

                                        IV.

      We first address whether the district court correctly concluded that 28

U.S.C. § 2255(h) bars Scott’s 2011 Motion as “second or successive.” Section

2255(h) functions as a “gatekeeping provision” for “second or successive” motions

to vacate brought under AEDPA.           Under section 2255(h) no “second or

successive” motions may be brought unless they identify either “(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).




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       Neither of those exceptions applies here. So we must consider whether

Scott’s 2011 Motion qualifies as “second or successive.” If so, we must dismiss

it.

       We do not get much help from AEDPA in discerning the meaning of the

phrase “second or successive.” In fact, AEDPA does not define the phrase. Nor is

the phrase itself “self-defining.” Panetti v. Quarterman, 551 U.S. 930, 943 (2007).

       But the Supreme Court has explained that “second or successive” does not

capture all collateral petitions “filed second or successively in time, even when the

later filings address a . . . judgment already challenged in a prior . . . application.”2

Id. at 944.    Instead, “second or successive” is a “term of art.” Slack v. McDaniel,

529 U.S. 473, 486 (2000). And since it limits the courts’ jurisdiction, we read it

narrowly. See Castro v. United States, 540 U.S. 375, 381 (2003) (citing Utah v.

Evans, 536 U.S. 452, 463 (2002)).

       As the Supreme Court has construed the phrase, “second or successive”

“takes its full meaning from [the Supreme Court’s] case law, including decisions

predating the enactment of [AEDPA].” Panetti, 551 U.S. at 943-44. So we must

explore the relevant case law on the meaning of “second or successive.”

       2
          Panetti involved a petition filed under 28 U.S.C. § 2254, whereas Scott’s motion arises
under § 2255. We have recognized that “precedent interpreting one of these parallel restrictions
is instructive for interpreting its counterpart.” Stewart v. United States, 646 F.3d 859 n.6 (11th
Cir. 2011). Indeed, Stewart applied Panetti’s discussion on the meaning of “second or
successive” in the context of evaluating a second-in-time § 2255 motion.


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A.    Panetti v. Quarterman set forth the factors for determining whether a
      second-in-time petition is “second or successive.”

      Our starting point is the Supreme Court’s decision in Panetti. 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 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 (1986). See id. at

938-41. The district court denied his petition, and the circuit court affirmed. Id. at

941-42.

      The Supreme Court granted certiorari. Id. at 942. Before addressing the

merits, the Court considered whether it had jurisdiction over Panetti’s claim, in

light of 28 U.S.C. § 2244(b)(2), a habeas gatekeeping mechanism that is 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



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2254 that was not presented in a prior application” unless it satisfies one of two

exceptions—neither of which applied to Panetti’s claim. 3

      The 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 looked solely to three considerations:                     (1) the

implications for habeas practice if the Court found it 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 with the implications for habeas practice, the Court first discussed

the nature of a Ford claim. See id. at 943. Because a Ford claim asserts that a

petitioner is not competent to be executed, the Court noted that such a claim does

      3
          Section 2244(b)(2) provides,
                (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—
                       (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)(i) 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.



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not ripen unless the 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, a petitioner may not fall into a state

of mental incompetence until after the courts have resolved his first habeas

petition. Id. So if “second or successive” encompassed Ford claims, a mentally

competent prisoner would always have to prophylactically raise a Ford claim in his

first federal habeas petition, regardless of whether he had any indication that he

might eventually become incompetent, just to preserve the possibility of raising a

Ford claim at a later time. Id. This practice, the 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. AEDPA was designed to “further the principles

of comity, finality, and federalism.” Id. at 945 (citation and internal quotation

marks omitted). But “[a]n empty formality requiring prisoners to file unripe Ford

claims neither respects the limited legal resources available to the States nor

encourages the exhaustion of state remedies.” Id. at 946. And as for finality

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




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the nature of a Ford claim, federal courts are generally unable to address such

claims within the time frame for resolving first habeas petitions, anyway. Id.

      Finally, the Court accounted for the abuse-of-the-writ doctrine, 4 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. Zant, 499 U.S. 467,

470 (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 and decide whether the petitioner had a full and fair

opportunity to raise the claim in the prior application.” Magwood v. Patterson,

561 U.S. 320, 345 (2010) (Kennedy, J., dissenting) (citing Panetti, 551 U.S. at

947). “[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.”              Id. at 346 (Kennedy, J.,

dissenting) (citing Panetti, 551 U.S. at 947). Since a Ford claim considers a

petitioner’s mental state at the time of proposed execution and Panetti’s first §

2254 petition was filed well before that time, Panetti did not have a full and fair

opportunity to raise that claim—that is, the claim did not ripen—until after his first

      4
        Justice Kennedy has described “the design and purpose of AEDPA [as being] to avoid
abuses of the writ of habeas corpus.” Magwood v. Patterson, 561 U.S. 320, 344 (2010)
(Kennedy, J., dissenting).

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§ 2254 petition was resolved. See Panetti, 551 U.S. at 947. For that reason, the

Court found no abuse of the writ. Id.

         So ultimately, the Supreme 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,

implemented to further the principles of comity, 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 no party.” Id.

B.       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.”

         In Panetti’s light, we must consider whether second-in-time petitions raising

newly disclosed actionable Brady 5 violations—where the newly disclosed evidence

creates a reasonable probability that it would change the outcome of the

proceeding—are “second or successive” within the meaning of § 2255(h)’s




         5
         For convenience, we use the term “Brady violation” to refer to Giglio violations as well
as Brady violations, as Brady and Giglio represent manifestations of the same type of due-
process violation. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999) (describing the three
components of a Brady violation as follows: “The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.”)
(emphasis added).


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gatekeeping provision. We find that they are not. The Panetti factors and their

sub-considerations uniformly require this conclusion.

         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 the

evidence is material either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.” Strickler v. Greene, 527 U.S. 263, 280 (1999)

(quoting Brady, 373 U.S. at 87) (internal quotation marks omitted). Evidence is

“material,” in turn, when “there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would have been

different.” Id. (citation and internal quotation marks omitted). So no actionable

Brady violation occurs “unless the nondisclosure was so serious that there is a




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reasonable probability that the suppressed evidence would have produced a

different verdict.”6 Id. at 281 (internal quotation marks omitted).

       Because of the nature of a 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 obliged 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 Brady violation that will

eventually be disclosed. And also like with Ford claims, the courts would be

forced to address this avalanche of substantively useless Brady claims—only there

would be even more meritless Brady claims because Brady does not apply only in

capital cases, like Ford does. For this reason, finding second-in-time Brady claims

to be “second or successive” under § 2255 would have even more deleterious

       6
          Prosecutors are, of course, always obligated to disclose exculpatory evidence to the
defendant. But the Supreme Court has classified as “real” (and therefore actionable) Brady
violations only one subset of cases where the prosecution fails to disclose exculpatory evidence
within its possession: those in which it is reasonably probable in hindsight that a jury privy to
the undisclosed material would have returned a different verdict. See Strickler, 527 U.S. at 281.
So an actionable Brady violation includes three elements: “The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice
must have ensued.” Id. at 281-82. In this opinion, we analyze only whether these actionable
Brady violations, which we refer to simply as “Brady violations,” are “second or successive.”
Our analysis does not apply to cases where it is not reasonably probable that exculpatory
evidence withheld by the government would have changed the outcome of the proceeding.


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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.             We start from the

proposition that at the very least, the second-in-time filing of a Brady claim that a

prisoner could not have discovered earlier through the reasonable exercise of due

diligence does not negatively implicate AEDPA’s finality concerns any more than

does the second-in-time filing of a Ford claim, 7 though for different reasons. To

explain why, we return to the nature of a Brady violation.

       When a Brady violation occurs, a defendant is entitled to a new trial. Brady,

373 U.S. at 87.       As the Supreme Court has explained, “[a] prosecution that

withholds evidence . . . which, if made available, would tend to exculpate [the

defendant] or reduce the penalty[,] . . . casts the prosecutor in the role of an

architect of a proceeding that does not comport with standards of justice, even




       7
         Unlike in the § 2254 context, comity and federalism are not concerns when it comes to
§ 2255 claims since these claims involve only federal proceedings. See infra at 35.


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though . . . his action is not ‘the result of guile.’” Id. at 87-88. Put simply, a

criminal defendant does not receive a fair trial when a Brady violation occurs.8

       Yet the Constitution guarantees criminal defendants a fair trial. Delaware v.

Van Arsdall, 475 U.S. 673, 681 (1986). So imprisoning someone based on the

results of an unfair trial and then precluding any remedy at all might well work a

suspension of the writ of habeas corpus. Cf. Magwood, 561 U.S. at 350 (Kennedy,

J., dissenting) (opining that refusal to consider a second-in-time habeas petition

challenging an alleged violation that occurred entirely after the denial of the first

petition “would be inconsistent with abuse-of-the-writ principles and might work a

suspension of the writ of habeas corpus”).

       And even if precluding a remedy for a Brady violation that a petitioner could

not reasonably have been expected to discover through due diligence does not

suspend the writ, it certainly clashes with finality concerns. The Supreme Court

has noted that finality is important to endow criminal law with “much of its




       8
          The trial is not unfair in the constitutional sense if the government failed to disclose
non-material exculpatory information in its possession. Such a violation, by definition, could
not have affected the outcome of the trial. Similarly, where the government never possessed the
newly discovered evidence before or during trial, the trial is not constitutionally unfair because
of the absence of the newly discovered evidence. In that case, the government did not wittingly
or unwittingly use its advantage as the prosecuting authority to obtain a conviction it otherwise
might not have been able to secure. Because neither of these types of events renders a trial
constitutionally unfair, they do not affect AEDPA’s finality concerns the same way as does a
Brady violation, which, again, will involve only material non-disclosures.


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deterrent effect.”   McCleskey, 499 U.S. at 491 (citation and 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, 57 Ann. Rev. Psychol. 375 (2006)).

And legitimacy affects compliance.        Cf. id. (citing studies showing reduced

recidivism when defendants perceived themselves as having received fair process).

When the government imprisons a person after a constitutionally unfair trial, that

undermines 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 less incentive to comply with the law because, in his view,

compliance makes no 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 does not occur.            So the

government cannot be heard to complain of trial prejudice from a new trial

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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 it did

not aim to encourage prosecutors to withhold constitutionally 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. Taylor, 529 U.S. 420, 437 (2000)

(comity interests “not served by saying a prisoner ‘has failed to develop the factual

basis 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.

      3.     Precluding Brady claims that a prisoner could not have discovered
             through due diligence is not consistent with the abuse-of-the-writ
             doctrine.

      Finally, allowing 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 we have noted, the abuse-of-the-writ

doctrine calls for courts to consider whether a habeas petitioner has previously had

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“a full and fair opportunity to raise the claim in the prior application.” 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

opportunity,” the doctrine requires him to make two showings: (1) he has “cause,”

or a “legitimate 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 (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 cause requirement where he can demonstrate

“interference by officials that makes compliance with the . . . procedural rule

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).9 A Brady violation that a prisoner could not reasonably have been

expected to discover through the exercise of due diligence falls into that category.

See, e.g., Strickler, 527 U.S. at 289 (finding cause for failing to raise a Brady claim



       9
         Though McCleskey spoke of the “cause” standard above in the context of the doctrine of
procedural default, the Supreme Court expressly concluded that the standard for showing
“cause” under the abuse-of-the-writ doctrine is the same as for demonstrating “cause” for a
procedural default. See McCleskey, 499 U.S. at 493; see also Schlup v. Delo, 513 U.S. 298, 318-
19 (1995) (“The application of cause and prejudice to successive and abusive claims conformed
to [the Supreme Court’s] treatment of procedurally defaulted claims.”).


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where the prosecution withheld exculpatory evidence, the 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 would 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 a petitioner can demonstrate both cause and prejudice by

establishing a Brady violation that he could not reasonably have discovered

through due 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 favors allowing such a second-in-time

claim.

         In short, all the Panetti factors—the implications for habeas practice, the

purposes of AEDPA, and the abuse-of-the-writ doctrine—compel the conclusion

that second-in-time Brady claims cannot be “second or successive” for purposes of




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§ 2255(h). 10      And nothing Panetti teaches us to consider so much as hints

otherwise.

C.     Tompkins nonetheless requires us to conclude that second-in-time Brady
       claims are always “second or successive.”

       The district court, however, concluded that our decision in Tompkins v.

Secretary, Department of Corrections precluded it from ruling that second-in-time

Brady claims that could not have been discovered earlier through the exercise of

reasonable diligence are not “second or successive.” We now take a look at

Tompkins to decide whether that is correct.

       In Tompkins, this Court considered whether a second-in-time § 2254 petition

that raised Brady and Giglio claims, among others, qualified as “second or

successive” for purposes of § 2244(b)(3)(A). The Tompkins panel determined it

did. 557 F.3d at 1260.

       To reach this conclusion, the panel first determined that the Supreme Court

in Panetti “limit[ed] its holding to Ford claims.” Tompkins, 557 F.3d at 1259. The

panel, in essence, deemed the Panetti factors irrelevant to analyzing the issue




       10
           The rule we think Panetti requires for the limited subset of second-in-time actionable
Brady claims we discuss renders the jurisdiction and merits inquiries a single question where no
issues of fact exist. But that is no different than the situation when a petitioner raises a second or
successive claim under § 2255(h)(1); there, too, the jurisdiction and merits inquiries are one and
the same when no issues of fact arise.


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before it and further attempted to explain why Panetti was factually distinguishable

from the case it was reviewing. Id. at 1260.

      1.      Tompkins was incorrectly decided.

      We respectfully disagree with the Tompkins panel’s analysis and conclusion.

As we read Panetti, the Supreme Court did not limit its analysis to petitions

involving Ford claims. And when we apply the Panetti factors to Brady claims, as

we must, Brady claims cannot be factually distinguished from Ford claims for

purposes of determining whether they are “second or successive.”

              a.    Panetti did not limit its analysis to petitions involving Ford
                    claims.

      Beginning with the breadth of Panetti’s holding, we cannot agree that the

Supreme Court restricted its analysis to second-in-time petitions involving only

Ford claims.       Neither Panetti’s language nor its analysis supports such a

conclusion.

      First, Panetti’s language rules out such a narrow holding.           In fact, the

Supreme Court summarized its own jurisdictional holding as recognizing

“exceptions”—plural—to the rule that a second-in-time petition fails AEDPA’s

“second or successive” bar: “In the usual case, a petition filed second in time and

not otherwise permitted by the terms of § 2244 will not survive AEDPA’s ‘second

or successive’ bar. There are, however, exceptions.” Panetti, 551 U.S. at 947

(emphasis added).
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      Of course, that alone does not specify what exactly the Court had in mind.

But the Court then immediately followed up this statement with what we

understand as a partial test for determining whether a second-in-time petition that

includes a particular type of claim qualifies as “second or successive”: “We are

hesitant to construe [AEDPA], implemented to further the principles of comity,

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 no

party.” Id. If the Court intended to limit its holding to second-in-time Ford claims

only, we think it would have employed the singular form of “exception,” rather

than the plural, and it would have referred specifically to Ford claims in that

sentence instead of stating a generally applicable rule for construing the phrase

“second or successive” in AEDPA.

      Second, the analysis in Panetti itself demonstrates that the Supreme Court

did not limit Panetti’s holding to Ford claims. As we have noted, the Panetti

Court arrived at its conclusion solely by evaluating three different generally

applicable factors: the “implications for habeas practice,” AEDPA’s purposes, and

the abuse-of-the-writ doctrine. See id. at 945-47. Not one of these factors applies

uniquely to Ford claims. Nor does any factor apply in such a way as to allow only

Ford claims through.




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         Significantly, the Supreme Court also emphasized the importance of

accounting for AEDPA’s purposes and the implications for habeas practice not just

when considering whether Ford claims are “second or successive” but whenever

“petitioners run the risk under the proposed interpretation [of AEDPA] of forever

losing their opportunity for any federal review of their . . . claims.” Id. at 945-46

(citation and internal quotation marks omitted). Towards that end, the Court drew

on examples where it had construed other aspects of AEDPA’s limiting language

to nonetheless allow for claims and procedures where failure to do so would

preclude any opportunity for petitioners to have potentially meritorious claims

heard.

         For example, the Panetti Court pointed to Castro v. United States, 540 U.S.

375 (2003). In that case, the pro se petitioner filed a motion for new trial under

Federal Rule of Criminal Procedure 33. Castro, 540 U.S. at 378. The district

court recharacterized the filing as a § 2255 motion, without notice to the petitioner.

The district court denied the motion on the merits, and we affirmed. Id. at 378-79.

Three years later, when the petitioner sought to file a motion he called a § 2255

motion, the motion was dismissed as “second or successive.” Id. at 379. The

Supreme Court granted certiorari to consider whether a pro se petitioner’s motion

may be recharacterized as second or successive without notice to the petitioner. Id.

But before the Court could consider the answer to that question, it had to determine

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whether it could even take up the case since § 2244(b)(3)(E) requires that the

“grant or denial of an authorization by a court of appeals to file a second or

successive application . . . shall not be the subject of a [certiorari] petition.” Id. at

379 (quoting 28 U.S.C. § 2244(b)(3)(E)). The Castro Court held that it could still

review the case, despite the lower courts’ actions. Id.

      In Panetti, the Court described its holding in Castro as having “resisted an

interpretation of [AEDPA] that would produce troublesome results, create

procedural anomalies, and close our doors to a class of habeas petitioners seeking

review without any clear indication that such was Congress’ intent.” Panetti, 551

U.S. at 946 (internal quotation marks omitted). And the Court cited other several

cases that demonstrate these same principles. See Williams, 529 U.S. at 437

(holding that under § 2254(e)(2), a “fail[ure] to develop” a claim’s factual basis in

state-court proceedings is not established unless the petitioner is not duly diligent);

Johnson v. United States, 544 U.S. 295, 308-09 (2005) (holding that where an

underlying state conviction used to enhance a federal sentence has since been

vacated, § 2255’s one-year limitations period does not begin to run until petitioner

receives notice of order vacating the prior conviction, as long as petitioner sought

order with due diligence); Granberry v. Greer, 481 U.S. 129, 131-34 (1987)

(holding that where the state fails to object on grounds of exhaustion and a

potentially meritorious exhaustion defense exists, a federal court should not simply

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dismiss the petition but should instead exercise discretion to determine whether the

administration of justice would be better served by insisting on exhaustion or by

instead addressing the merits of the petition); Duncan v. Walker, 533 U.S. 167, 178

(2001) (holding that federal habeas corpus review does not toll limitation period

under § 2244(d)(2) on grounds that contrary reading “would do far less to

encourage exhaustion prior to seeking federal habeas review and would hold

greater potential to hinder finality”).

      These cases involve a variety of claims and portions of AEDPA’s language.

But they all share one thing: to resolve each case, the Supreme Court relied on the

implications for habeas practice and the purposes of AEDPA. That the Supreme

Court found these considerations applicable in these different cases demonstrates

definitively that Ford claims are not a one-off;     rather, they are but one type of

claim among several where, in construing the meaning of AEDPA’s language, we

must consult the implications for habeas practice and the purposes of AEDPA.

             b.     Brady claims are not factually distinguishable from Ford claims
                    for the purposes of determining whether they are “second or
                    successive.”

      With Panetti and its factors out of the way, Tompkins then factually

distinguished Brady claims from Ford claims without applying the Panetti factors,

instead creating a new test not found in Panetti. Specifically, Tompkins homed in

on the Panetti Court’s pronouncement that “Ford-based incompetency claims, as a

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

petition.” See Tompkins, 557 F.3d at 1259-60 (quoting Panetti, 551 U.S. at 942)

(internal quotation marks omitted).       Then Tompkins ascribed a meaning and

significance to the term “ripe” that directly conflicts with Panetti’s analysis. In

particular, Tompkins concluded that a claim’s “ripeness” depends on when the

violation supporting the claim occurred. Id. at 1260. And since a Brady violation

happens during trial or sentencing, Tompkins reasoned, any claim based on a Brady

violation necessarily ripens, at the latest, by the end of sentencing. See id.

      We see two problems with this reasoning. First, the Supreme Court in

Panetti did not purport to define the word “ripe.” Nor does Tompkins cite anything

to support its definition of the term. See id. at 1259-61. In fact, Tompkins’s

definition of the word conflicts with how the term is generally understood in the

law. “Ripeness” refers to “[t]he state of a dispute that has reached, but has not

passed, the point when the facts have developed sufficiently to permit an intelligent

and useful decision to be made.” Ripeness, Black’s Law Dictionary (10th ed.

2014).   But when, through no fault of the petitioner, a Brady violation goes

undiscovered through trial and sentencing, the facts concerning a claim based on

that violation have not been developed sufficiently to permit an intelligent and

useful decision to be made. Indeed, they have not been developed at all until such

time as the Brady violation is discovered.

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      Second, and even more significantly, to the extent that Panetti referred to

ripeness as a consideration within its framework for evaluating whether a second-

in-time claim is “second or successive,” Tompkins’s discussion of “ripeness”

cannot be harmonized with Panetti’s. Panetti accounted for what it referred to as

ripeness only for the purpose of evaluating the implications on habeas practice of

holding an unripe claim to be “second or successive.” Panetti, 551 U.S. at 943-45.

As we have discussed, Panetti expressed concern that holding unripe claims to be

“second or successive” would flood the courts with useless claims on the off

chance that such claims might later ripen. See id. at 943. But, of course, that is

true of Brady claims that could not have been discovered earlier through due

diligence. So Panetti is not distinguishable on grounds of a difference in ripeness

between Ford claims and Brady claims that could not have been discovered earlier.

On the contrary, Panetti’s use of ripeness in its analysis compels the conclusion

that a second-in-time Brady claim that could not have been discovered earlier is

not “second or successive.”

      2.    The prior-panel-precedent rule requires us to apply Tompkins,
            though we are “convinced it is wrong.”

      Though we disagree with Tompkins and its reasoning, we recognize that it is

nonetheless our precedent. Because Tompkins addresses whether Brady claims in

§ 2254 petitions can ever avoid being “second or successive,” we must consider



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whether Tompkins controls the outcome when § 2255 petitions are involved. We

conclude that it does.

      The prior-panel-precedent rule requires subsequent panels of the court to

follow the precedent of the first panel to address the relevant issue, “unless and

until the first panel’s holding is overruled by the Court sitting en banc or by the

Supreme Court.” Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).

Even when a later panel is “convinced [the earlier panel] is wrong,” the later panel

must faithfully follow the first panel’s ruling. United States v. Steele, 147 F.3d

1316, 1317-18 (11th Cir. 1998) (en banc). We of course are not bound by anything

that is mere dictum. See Lebron v. Sec’y of Fla. Dep’t of Children & Families, 772

F.3d 1352, 1360 (11th Cir. 2014) (“[D]iscussion in dicta ‘is neither the law of the

case nor binding precedent.’”) (citation omitted). But our case law reflects that

under the prior-panel-precedent rule, we must follow the reasoning behind a prior

holding if we cannot distinguish the facts or law of the case under consideration.

See Smith, 236 F.3d at 1301-04. So we consider whether we may limit Tompkins’s

holding to only Brady claims arising under § 2254.

      Important differences between § 2254 and § 2255 do exist. Among others,

§ 2254 vindicates the concerns of comity and federalism by restricting when

federal courts can reopen state criminal convictions, while § 2255, which deals

with federal criminal convictions, does not.

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      Nor is the interest of finality exactly the same for § 2254 and § 2255 claims.

“Finality has special importance in the context of a federal attack on a state

conviction.” McCleskey, 499 U.S. at 1469.

      And separation-of-powers considerations drive § 2255 claims. See Bousley

v. United States, 523 U.S. 614, 620-21 (1998) (characterizing separation-of-powers

concerns as “the doctrinal underpinnings of habeas review” of federal convictions

and sentences); see also Welch v. United States, 136 S. Ct. 1257, 1268 (2016). But

they have no relevance to § 2254 claims.

      Plus, the federal government has a distinctive concern for ensuring that

federal prosecutors have acted appropriately when it reviews § 2255 claims: “the

United States Attorney is the representative not of an ordinary party to a

controversy, but of a sovereignty whose obligation to govern impartially is as

compelling as its obligation to govern at all; and whose interest, therefore, in a

criminal prosecution is not that it shall win a case, but that justice shall be done.”

Strickler, 527 U.S. at 281 (internal quotation marks omitted) (quoting Berger, 295

U.S. at 88).

      Even the language of the two statutes’ respective gatekeeping provisions

differs. Compare 28 U.S.C. § 2244(b)(2)(B) (restricting habeas review of state

convictions to, among others, cases where “the factual predicate for the claim

could not have been discovered previously through the exercise of due diligence”),

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with 28 U.S.C. § 2255(h) (limiting federal habeas review to cases of “newly

discovered evidence,” among others). But see Gonzalez v. Sec., Dep’t of Corr.,

366 F.3d 1253, 1262 (11th Cir. 2004) (en banc) (recognizing “no material

difference in the relevant statutory language” between gatekeeping provisions of

sections 2244 and 2255).

      All of these differences provide good reason to treat § 2254 and § 2255

claims differently under appropriate circumstances. But none of them allows us to

sufficiently distinguish Tompkins’s reasoning in analyzing Brady claims under

§ 2254 from how we must analyze Brady claims in this Circuit under § 2255.

      As we have noted, Tompkins based its determination that all Brady claims

are necessarily “second or successive” on its conclusion that all Brady claims ripen

during trial or, at the latest, sentencing. We have already explained why, were we

starting our analysis from scratch, we would conclude that is not correct.

      But we see no basis that allows us to distinguish between state and federal

proceedings in this regard; Brady claims in state proceedings do not “ripen” any

sooner than do Brady claims in federal proceedings under Tompkins’s definition of

the word. And while federal courts have a special interest in ensuring the integrity

of federal proceedings, we do not think that that fact alone explains why Brady

claims in state proceedings should be treated any differently than Brady claims in

federal proceedings.

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      For these reasons, we must conclude that Tompkins’s reasoning governs all

second-in-time Brady claims, regardless of whether they are brought under § 2254

or § 2255. Despite Tompkins’s failure to adhere to—or even to attempt to apply—

the Panetti factors, we must nonetheless hew to Tompkins’s command and deem

Scott’s 2011 Motion “second or successive” under § 2255(h). Because Tompkins

is fatally flawed, however, we respectfully urge the Court to take this case en banc

so we can reconsider Tompkins’s reasoning.

                                         V.

      Having concluded we must dismiss Scott’s § 2255 motion as “second or

successive,” we now turn to Scott’s alternative motion to reopen his original 2006

Motion under Rule 60(b)(3). As we noted at the outset, the district court ultimately

granted Scott’s alternative motion to reopen but declined to grant him relief on the

merits. On appeal, neither party disputes that the district court was within its

power to reopen the 2006 Motion. Scott argues, however, that the district court

incorrectly concluded that he failed to adequately allege ineffective assistance of

his trial counsel in light of the government’s previously undisclosed evidence

about Pena.

      The Sixth Amendment right to counsel “is the right to effective assistance of

counsel.”     Strickland, 466 U.S. at 686 (citation and internal quotation marks

omitted). A claim of ineffective assistance of counsel requires a two-pronged

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showing:       that counsel’s performance was constitutionally deficient and that

counsel’s deficiencies prejudiced the proceeding’s outcome. Id. at 693. The

district court concluded that even in light of the new evidence about Pena, Scott’s

trial counsel did not exhibit constitutionally deficient performance.

      An attorney’s performance fails to meet the constitutional minimum when it

falls “below an objective standard of reasonableness . . . , which means that it is

outside the wide range of professionally competent assistance.” Payne v. Allen,

539 F.3d 1297, 1315 (11th Cir. 2008) (citations and internal quotation marks

omitted). We have observed that “omissions are inevitable” because “trial lawyers,

in every case, could have done something more or something different.” Chandler

v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000). We therefore “conduct a

highly deferential review of counsel’s performance and indulge the strong

presumption that counsel’s performance was reasonable and that counsel made all

significant decisions in the exercise of reasonable professional judgment.” Payne,

539 F.3d at 1315 (alteration and internal quotation marks omitted).        “[T]rial

counsel has not performed deficiently when a reasonable lawyer could have

decided, under the circumstances, not to investigate or present particular

evidence.” Id. at 1316 (quoting Grayson v. Thompson, 257 F.3d 1194, 1225 (11th

Cir. 2001)).




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      The district court acknowledged that Scott’s counsel took the government at

its word that it had produced all Brady and Giglio material, and, as a result, that his

counsel did not undertake additional steps to seek further impeachment material for

Pena. But the court refused to find “that no competent lawyer would have declined

to expend further time and resources” on searching for Brady and Giglio material

when defense counsel is “entitled presume that the government had disclosed all

such matters.” Scott argues on appeal that this is incorrect, and that under the

district court’s reasoning, “no counsel could ever be found ineffective, entitled as

counsel would be to blindly rely on the presumption that the prosecution has

provided the defense with all the exculpatory or impeachment material that is to be

found in the case.”

      We conclude the district court did not abuse its discretion in declining to

find Scott’s trial counsel ineffective.    The decision to refrain from additional

investigation into Pena’s background was within the “wide range of professionally

competent assistance,” given the inevitable choices defense lawyers must make

about how to deploy their limited time and resources. See Strickland, 466 U.S. at

690. An attorney’s performance is not deficient in hindsight just because he or she

made one choice versus another. Cf. Willis v. Newsome, 771 F.2d 1445, 1447

(11th Cir. 1985) (“Tactical decisions do not render assistance ineffective merely

because in retrospect it is apparent that counsel chose the wrong course.”).

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      This is not to say that no attorney could ever be found ineffective for taking

the government’s word as grounds for refraining from further investigation. In

some cases obvious red flags might exist calling for further inquiry, even where the

government has assured defense counsel that it has disclosed all Brady and Giglio

material. An attorney who does not investigate under those circumstances might

indeed be constitutionally ineffective. But on the facts of this case, no such red

flags existed. We conclude that the district court did not abuse its discretion in

declining to grant Scott relief on his reopened 2006 Motion.

                                        VI.

      Ultimately, Tompkins binds us to conclude that in § 2255 cases, all second-

in-time Brady claims are “second or successive” under § 2255(h), even if the

petitioner could not reasonably have been expected to discover the Brady violation

and there is a reasonable probability that timely disclosure of the suppressed

evidence would have resulted in an acquittal. We think this conclusion conflicts

with Panetti and effects a suspension of the writ of habeas corpus as it pertains to

this narrow subset of Brady claims. Supreme Court precedent, the nature of the

right at stake here, and habeas corpus require a petitioner who has reasonably

probably been convicted because the government failed to disclose material

exculpatory evidence, to have a full and fair opportunity to obtain relief. For this




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reason, we urge our colleagues to rehear this case en banc and reevaluate the

framework we established in Tompkins.

     AFFIRMED.




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