Fourth and Fifth Circuits Reopen Decades-Old Cases for Habeas Relief Due to Brady Violations
The Fifth Circuit Case
The first case was an application to file a “second or successive” (“SOS”) habeas corpus petition in federal court by Robert Gene Will in the Fifth Circuit. On August 5, 2020, a divided panel of that court granted Will permission to file another petition under 28 U.S.C. § 2254 in the district court based on a slew of exculpatory evidence that the prosecution withheld from the defense.
Will was convicted and sentenced to death for the murder of a Harris County (Texas) sheriff’s deputy in 2000. Despite the fact that there were no witnesses or forensic evidence tying him to the crime, a jury still found him guilty. Fifteen years later, Will filed an application in the Fifth Circuit requesting permission to file another habeas corpus petition in federal court to challenge his conviction based on evidence suppressed by the prosecution.
The Fifth Circuit granted Will permission, finding that “there were disturbing uncertainties of Will’s culpability even before the introduction of the withheld evidence. Now, with the new evidence in hand, the uncertainties are even more disturbing.”
Under 28 U.S.C. § 2244(b)(3)(C), a state prisoner must file in the appropriate U.S. Court of Appeals an application for authorization to file a SOS habeas petition in the district court. If the application makes a prima facie showing of satisfying certain gatekeeping provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), the court can grant authorization to allow the district court to hear the claims in the first instance. The Court of Appeals does not, however, examine the merits of the claims in considering whether to grant authorization.
Will met one of the criteria by showing that the newly discovered evidence, “if proven and viewed in light of the evidence as a whole, [it] would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” § 2244(b)(2)(B)(ii). In other words, Will showed he was likely “actually innocent” of his conviction.
The Court listed in a chart 20 “key pieces of evidence” that cast reasonable doubt on Will’s conviction. But this wasn’t the first time a court has questioned his guilt. In 2012, the district court “lament[ed] the strict limitations placed” on it by the AEDPA, requiring it to deny habeas relief based on the evidence it saw back then, urging the governor to undo Will’s death sentence.
Now, new documents and reports have come to light to show Will’s codefendant may have been the real killer, and Will has “demonstrated it is reasonably likely that, after hearing the new evidence alongside the old evidence, every reasonable juror would have some level of reasonable doubt,” the Court said.
What opened the door for Will was that the prosecution violated the requirements set forth by the U.S. Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963). There, the Supreme Court held that when the prosecution withholds evidence, purposefully or not, that may be “favorable” to a defendant, it violates the Due Process Clause of the U.S. Constitution. And it’s the prosecution’s responsibility to turn over the evidence – a defendant doesn’t have to “scavenge for hints of undisclosed Brady material,” the Court instructed.
Accordingly, the Fifth Circuit held that Will made a prima facie showing his Brady claim deserves further consideration and granted authorization to file another habeas petition in the district court. See: Will v. Davis, 970 F.3d 536 (5th Cir. 2020).
The Fourth Circuit Case
In the Fourth Circuit, the Court similarly granted authorization for Ronnie Long to file another habeas corpus petition in the district court, which was denied on the merits. On appeal from that denial, a divided en banc Fourth Circuit held on August 24, 2020, that the district court erred when it ruled the state postconviction court did not unreasonably apply U.S. Supreme Court case law to Long’s case.
Long was convicted in a North Carolina state court in 1976 for burglary and rape and was sentenced to life in prison. The strongest evidence against Long was the victim’s testimony identifying him as the man who raped her.
In 2005, Long began requesting evidence to be tested, including biological evidence for DNA testing. Long found that much of the evidence he received was never disclosed to his defense lawyers by the prosecution. Citing a Brady violation, Long filed a Motion for Appropriate Relief (“MAR”) in 2008 in state court, asking for a new trial.
While the MAR court found that the prosecution indeed violated Brady by withholding evidence from Long, it denied his MAR because he had “not shown by a preponderance of the evidence that the claimed evidence was withheld by the state, that it was exculpatory, or that the result likely would have been different with the claimed evidence.” His state appeals of that denial were all rejected.
Five years later, Long filed his authorized SOS § 2254 petition in the district court, again raising his Brady claim. The district court ruled that the MAR court “reasonably applied the United States Supreme Court’s Brady jurisprudence in concluding that the evidence in question, considered cumulatively, did not qualify as material.”
On appeal, the Fourth Circuit held that the MAR court applied “an erroneously high burden” on Long to prove his Brady claim. Under Brady, a defendant must show only a “reasonable probability of a different result” for the withheld evidence to be “favorable.” Kyles v. Whitley, 514 U.S. 419 (1995). The MAR court’s harsher “preponderance of the evidence” standard was too much, the Court said, and the district court should have known this.
And the evidence suppressed by the State was significant. Not only did a detective “lie” on the stand, the Court noted, but a “legion” of test results did not implicate Long. “Considering both the exculpatory and impeachment effects of the suppressed evidence, together with the shortfalls in [the victim’s] identification” of Long, the withheld evidence “put the whole case in such a different light as to undermine confidence in the verdict,” the Court said.
Accordingly, the Fourth Circuit vacated the district court’s denial and remanded with instructions to “act with dispatch” to determine if Long is “actually innocent” of his conviction after spending 44 years in prison. See Long v. Hooks, 972 F.3d 442 (4th Cir. 2020).
Why These Cases Are Important
These two cases illustrate the unfair burden placed on prisoners by the AEDPA who later discover, after all their appeals and postconviction remedies have been exhausted, that the prosecution withheld favorable evidence from them that could have proven their innocence – or at least led to a more favorable result. Both of the petitioners in these cases faced the nearly impossible to surmount bar under the AEDPA for SOS habeas corpus relief requiring “actual innocence.” Fortunately, they both met that burden. But many cannot.
But this burden has been criticized lately by many judges who say it’s not only unfair but likely unconstitutional. While nearly every Circuit has by now held that a Brady violation raised in a SOS petition or motion must clear the “actual innocence” bar under the AEDPA, the debate continues.
The courts so holding have reasoned that because a Brady violation existed at the time of the first petition or motion – even though it was unknown by the prisoner at the time – a subsequent challenge must be authorized under the SOS restrictions. This is the case despite the fact that the prosecution withheld the favorable evidence. This glaring problem was skillfully detailed by a panel of the Eleventh Circuit in Velez Scott v. United States 890 F.3d 1239 (11th Cir. 2018), where the Court said that, while it was bound by its precedent requiring authorization for Brady claims in SOS challenges, that precedent is “wrong.” Nearly the entire opinion was about why applying AEDPA’s restrictions to SOS challenges to Brady claims is unconstitutional.
Citing Velez Scott, three concurring judges in Long, discussed above, echoed the same concerns that making prisoners with Brady violation claims prove by clear and convincing evidence they are “actually innocent” violates the Constitution. “This case exemplifies how our current habeas precedent incentivizes and rewards bad faith on the part of police and prosecutors,” they charged in a separate 38-page opinion on why this rule should be changed.
“Our habeas precedent rewards state actors guilty of Brady violations for committing additional constitutional violations in order to subject the Brady claim to a higher standard of review. But keeping an innocent man in prison should not be considered a ‘reward,’” they continued.
This perverse incentive for prosecutors to withhold evidence knowing that a prisoner would face such an impossible burden under the AEDPA may not be one for the court to fix, one court suggested. In Brown v. Muniz, 889 F.3d 661 (9th Cir. 2018), the Court acknowledged the constitutional concerns with such a harsh rule but said that Congress chose to prioritize “finality” over a person’s innocence. “That is a policy, not a legal, objection” for Congress to answer, the Court explained in finding a Brady violation did not meet the strict actual innocence standard for relief in that case.