Under 28 U.S.C. § 2244(b), a "second or successive" application for habeas relief under 28 U.S.C. § 2254 is subject to a heightened gatekeeping requirement. In Panetti v. Quarterman, 551 U.S. 930 (2007), this Court declined to interpret "second or successive" as referring to all § 2254 applications filed second or successively in time, even when the later filings address a state-court judgment already challenged in a prior § 2254 application. This case presents the following question of first impression: whether a Brady claim discovered after the filing of an initial habeas petition should be subject to the heightened 'second or successive' gatekeeping requirements under § 2244(b)?

This question has resulted in a circuit split with the Second, Fourth, Fifth, Sixth, Eighth, and Ninth Circuits adopting the majority rule that a recently uncovered Brady claim is still subject to the heightened requirements of § 2244(b) where the petitioner previously sought habeas relief. By contrast, the Tenth Circuit follows a more permissive minority approach that considers several factors in determining whether to subject a recently discovered Brady claim as 'second or successive' under the statue. Apart from the circuit split, there is also robust disagreement within the circuits as to whether the majority rule is consistent with this Court's decision in Panetti.

Whether a Brady claim discovered after the filing of an initial habeas petition should be subject to the heightened 'second or successive' gatekeeping requirements under 28 U.S.C. § 2244(b)