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Third Circuit: Brady Claims in Habeas Petitions Timely When Filed Within One Year of Date Reason to Believe Prosecutor Violated Duty To Disclose

At William Bracey’s Pennsylvania murder trial in 1995, the Commonwealth relied heavily on two witnesses – Thomas Plummer, Jr., and Sylvester Bell. At trial, the Commonwealth elicited testimony from both witnesses that they had received favorable plea agreements on certain charges in exchange for their testimony. Bracey was sentenced to life in prison. His appeal and state habeas petition were unsuccessful.

In 2010, Bracey learned that shortly after he had been convicted, Plummer pleaded guilty to charges that had not been disclosed by the prosecutor. And the Commonwealth also failed to disclose it had withdrawn a second set of charges against Bell.

Based on this newly discovered information, Bracey petitioned for relief under Pennsylvania’s Post Conviction Relief Act (“PCRA”), arguing that the prosecutor failed to disclose exculpatory evidence as required by Brady. The Court of Common Pleas dismissed the PCRA petition as time-barred, ruling that the factual basis of the claim was a matter of public record and could have been ascertained earlier by the exercise of due diligence. The Superior Court affirmed.

Bracey then asserted his Brady claims in a federal habeas petition in 2011. The U.S. District Court for the Middle District of Pennsylvania dismissed the petition as untimely under 28 U.S.C. § 2244(d)(1)(D), reasoning that since the undisclosed materials were a matter of public record, Bracey brought his claims more than one year after the factual predicate of his claims could have been discovered through the exercise of due diligence. Bracey attempted to appeal the denial, but a certificate of appealability (“COA”) was denied.

Three years later, the Third Circuit ruled in Dennis that a defendant has no burden to “scavenge for hints of undisclosed Brady material” even if the material is part of the public record. Bracey moved for reconsideration under Federal Rules of Civil Procedure, Rule 60(b) (“Rule 60(b) motion”). The District Court summarily denied the Rule 60(b) motion without referencing or discussing Dennis. The Third Circuit issued a COA to answer, inter alia, whether the District Court abused its discretion in denying Bracey’s Rule 60(b) motion without considering Dennis’ effect on its previous decision to dismiss Bracey’s habeas petition.

Because Bracey’s Rule 60(b) motion sought relief based on an intervening change in the law, the Court first had to determine if the change was material to the basis on which the District Court initially denied habeas relief. Norris v. Brooks, 794 F.3d 401 (3d Cir. 2015). The District Court denied relief based on § 2244(d)(1)(D), which allows claims to be filed within one year of “the date on which the factual predicate of the claim[s] ... could have been discovered through the exercise of due diligence.” A “factual predicate” of a habeas claim means the facts “out of which a point of law arises.” Fact, Black’s Law Dictionary (11th ed. 2019).

Due diligence is a context-specific inquiry and is the diligence required based on the defendant’s knowledge, experience, and circumstances. Wilson v. Beard, 426 F.3d 653 (3d Cir. 2004). Due diligence requires a habeas petitioner to investigate only when he has a reasonable basis to expect that an investigation would uncover relevant information. Id.

Prior to Dennis, the Third Circuit’s decisions regarding Brady claims related to due diligence were inconsistent and confusing, the Court observed. For example, in United States v. Starusko, 729 F.2d 256 (3d Cir. 1984), the Third Circuit stated that the Government bore no obligation under Brady “to furnish a defendant with information which [the defendant] already has or, with any reasonable diligence, [could] obtain himself.” (The Third Circuit rendered similar rulings in numerous other prior decisions cited in the opinion.) But in Wilson, the Third Circuit held that a prosecutor’s Brady obligations require production of impeachment evidence even when that evidence is publicly available.

The Court explained that Dennis corrected and clarified the law by ruling that there is no “affirmative due diligence duty of defense counsel as part of Brady” and “no support [for] the notion that defendants must scavenge for hints of undisclosed Brady material.” Instead, “the duty to disclose under Brady is absolute – it does not depend on defense counsel’s actions.” Id. Because the prosecutor’s Brady obligation to disclose is absolute, the defendant is entitled to presume all materials have been disclosed. Id.

While Dennis didn’t directly involve § 2241(d)(1)(D), it materially altered what a petitioner in Bracey’s position would have reasonably expected about the possibility of undisclosed Brady material, thereby shifting the ground on which Bracey’s petition was dismissed, the Court explained. Based on the reasoning of Dennis, the Court held that a habeas petitioner’s Brady claim is timely under § 2244(d)(1)(D) so long as it is filed within one year of the date on which the petitioner has reason to believe that the prosecution may have violated its duty of disclosure. However, the Court cautioned: “If there is a reasonable basis [beforehand] for a petitioner to believe additional investigation will yield undisclosed Brady material, the petitioner must investigate or risk the statutory consequences [viz., dismissal].”

The Court stated that Dennis changed the relevant decisional law in that after Dennis the factual predicate is the prosecution’s failure to disclose any material – not its failure to disclose material otherwise unavailable. The District Court’s denial of Bracey’s petition due to a failure to exercise due diligence was permissible at the time of the denial but was not permissible post Dennis absent the existence of facts showing the defense failed to investigate a reasonable suspicion the prosecution had breached its duty to disclose.

Even though the Court concluded that Dennis materially changed the law, “intervening changes in the law rarely justify relief” without more. Cox v. Horn, 757 F.3d 113 (3d Cir. 2014). A defendant’s Rule 60(b) motion must show “extraordinary circumstances where, without such relief, an extreme and unexpected hardship would occur.” Id. The factors a district court should consider in making such a determination are: (1) the effect of the change in decisional law on a constitutional rule or right for criminal defendants, (2) the merits of the underlying claim[s], (3) principles of finality and comity, (4) movant’s diligence in pursuing review, and (5) where appropriate, the imperative of correcting a fundamentally unjust incarceration. Cox.

In the instant case, the District Court failed to conduct any analysis at all. Because none of the Cox factors was addressed, it was a per se abuse of discretion. Cox. And in those instances, Cox instructs that remand is necessary unless the court could affirm on some other ground[s], according to the Court. Thus, the Court concluded that the record before it required remand.

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