Where government action prevented Petitioner from bringing his claims under Brady and Napue in his initial § 2255 motion, should a second-in-time motion asserting those claims be deemed nonsuccessive under this Court's analysis in Panetti?

QUESTION PRESENTED Petitioner was sentenced to death for his role at age 18 in a carjacking that led to a double homicide, committed by five teenagers who belonged to the same youth gang. Acentral theme of the Government’s case for death was that Petitioner’s gang involvement made him “likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others,” which the government reinforced by eliciting testimony that the gang was not hierarchically organized and “everyone [was] equal in the gang.” Meanwhile, the government — despite having represented to the trial court that it would comply with Brady v. Maryland, 373 U.S. 83 (1963) — was in possession of the opinion of a law enforcement gang expert, never disclosed to Petitioner’s counsel, that the gang in fact had a typical hierarchical structure, that three of the other defendants sat high in its ranks, and that Petitioner was at its “very bottom.” The government’s emphasis on Petitioner’s gang ties as a basis for finding him a “continuing threat to the lives and safety of others” makes it reasonably likely that, had this information been disclosed, at least one juror would not have voted for death. Petitioner’s initial § 2255 motion did not, and could not, raise these Brady/Napue issues, because the government continued to withhold the Brady information throughout the initial § 2255 proceeding, telling the § 2255 court that it had maintained an open file discovery policy prior to trial (which would presumably have resulted in the disclosure of all Brady information). The § 2255 court cited that policy in denying Petitioner’s initial § 2255 petition without discovery or a hearing. Petitioner first learned of the Brady information (and a concomitant violation of Napue v. Illinois, 360 U.S. 264 (1959)) after his initial § 2255 motion had been denied. Petitioner brought a second § 2255 motion raising Brady and Napue issues, urging that under this Court’s analysis in Panetti v. Quarterman, 551 U.S. 930 (2007), the motion should not be deemed successive. The district court called Petitioner’s procedural argument “compelling,” but foreclosed by Fifth Circuit precedent. The Fifth Circuit affirmed, holding that Petitioner’s Brady and Napue claims were barred from review under § 2255 even though the government’s actions had prevented him from discovering the facts in time to include them in his first § 2255 motion. Ii Ii Ii i The following question is presented: Where government action prevented Petitioner from bringing his claims under Brady and Napue in his initial § 2255 motion, should a second-in-time motion asserting those claims be deemed nonsuccessive under this Court’s analysis in Panetti? ii