Conley v. U.S.

Decision Date06 March 2003
Docket NumberNo. 01-2693.,01-2693.
PartiesKenneth CONLEY, Petitioner, Appellee, v. UNITED STATES of America, Respondent, Appellant.
CourtU.S. Court of Appeals — First Circuit

S. Theodore Merritt, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, Ralph F. Boyd, Jr., Assistant Attorney General, Civil Rights Division, Department of Justice, Mark L. Gross and Teresa Kwong, Department of Justice, were on supplemental brief for appellant.

Saul M. Pilchen with whom Robert S. Bennett, Jonice Gray Tucker and Thomas J. Dougherty were on supplemental brief for appellee.

Before BOUDIN, Chief Judge, BOWNES, Senior Circuit Judge, TORRUELLA, SELYA, LYNCH, LIPEZ and HOWARD, Circuit Judges.

OPINION EN BANC

BOUDIN, Chief Judge.

The facts underlying this section 2255 action, recounted in detail in prior opinions,1 can be briefly summarized. About eight years ago, on January 25, 1995, a shooting occurred in the early morning hours in Boston, and there ensued a police chase of several suspects in a Lexus. Eventually, the Lexus was trapped in a dead-end street. Pulling up on the left side of the Lexus — the first of many pursuing police vehicles — was an unmarked police car with two plainclothes officers. One of the officers, Michael Cox, ran from the car after a suspect named Robert Brown who was fleeing on foot from the Lexus toward a fence to the right of the Lexus.

By this time other police cars were arriving, pulling in next to and behind the Lexus. In this line was a car driven by Officer Richard Walker; behind him was one containing Officer Kenneth Conley and his partner. According to later testimony, Cox chased Brown to the fence and grabbed at Brown but Brown got over. As Cox stood at the fence, he was brutally attacked and beaten by other arriving police officers who thought he was one of the suspects (and who also thought, wrongly, that a policeman had been shot). The assaulting officers discovered their mistake and dispersed, leaving Cox badly injured.

In April 1997, a federal grand jury began an investigation into the assault. Cox had not seen the officers who beat him and, although many officers had been at the scene, information was not readily provided. In due course, Conley was called before the grand jury. Conley testified that he had seen no one beating Cox; that he had himself pursued Brown to the fence; that he had seen no one between him and Brown and no one grabbing at Brown; that he had pursued Brown on the other side of the fence; and that after a chase of about a mile, he had caught and arrested Brown. There is little doubt that Conley did chase and catch Brown, but prosecutors did not believe the rest of his story.

In August 1997, the grand jury indicted Conley for perjury and obstructing justice — in substance, for denying that he saw Cox pursue Brown to the fence and for denying that he saw Cox being beaten. 18 U.S.C. §§ 1503, 1623 (2000). At Conley's trial in June 1998, three witnesses for the government (Cox, Brown and Walker) testified that Cox chased Brown to the fence and grabbed at Brown unsuccessfully as Brown scaled it. Brown also said that after he landed, he saw Conley through the fence and saw other officers (but not Conley) beating Cox. He also identified Conley as the officer who had chased and arrested him. Conley did not testify.

The jury convicted Conley of lying, and of obstructing justice, in testifying that he had seen no one else pursuing Brown to the fence; as for the charge that Conley had lied in denying seeing Cox being beaten, the jury acquitted Conley. Conley was sentenced to just under three years in prison. The sentence was stayed, and to date Conley has not served any of this sentence. No policeman was indicted or convicted of the beating, although three officers — but not Conley — were found liable to Cox in a civil trial following Conley's criminal trial.

On direct appeal, this court in 1999 affirmed the conviction. Conley I, 186 F.3d at 26. After the affirmance, Conley in early 2000 moved for a new trial under Fed.R.Crim.P. 33. Conley identified a number of pieces of evidence that he claimed were either newly discovered or wrongly withheld by the prosecution. Most of the evidence would have been useful (if useful at all) to impeach Officer Walker and — in one instance — Brown. One other piece of evidence, comprising the civil trial testimony of a security guard named Charles Bullard who was riding with Cox, might (in Conley's view) have suggested that Cox could have ended up behind Conley during the chase to the fence.

Under Rule 33, a new trial in "the interests of justice" may be granted liberally on a motion made "within 7 days" after the verdict; but, thereafter, it can be granted solely for newly-discovered evidence (and then only on a motion made within three years). Fed.R.Crim.P. 33. Further, under the case law, the defendant who makes such a motion after seven days bears the heavy burden of showing that the evidence would probably result in an acquittal upon retrial. United States v. Wright, 625 F.2d 1017, 1019 (1st Cir.1980). But if the new evidence was wrongly withheld by the government in violation of its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), it is enough to show that the evidence undermines confidence in the verdict. Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

In its decision on the Rule 33 motion in June 2000, the district court discussed the alleged new evidence at some length and concluded that material new evidence had first become available to defense counsel only after trial, Conley II, 103 F.Supp.2d at 51-58; the court was less clear as to whether any had been wrongly withheld in violation of Brady. Id. at 51-52, 54-55. In any event, it ordered a new trial in "the interests of justice," without finding prejudice under either Wright or Brady. Id. at 58. Somewhat cryptically, the district court stated in conclusion:

I conclude that the answer to the second question stated above [the extent of prejudice] cannot be determined as a matter of law, under ... [Wright and Brady]. Instead, in the unique circumstances of this case, I conclude that the determination to allow or not to allow a new trial is one committed to an exercise of discretion by the court to which the legal system assigns responsibility for making the determination.

Id. (emphasis added).

On appeal by the government, this court held in May 2001 that because the motion for a new trial was made more than seven days after the verdict, the district court could not use the general "interests of justice" standard in Rule 33 to bypass the established Wright and Brady prejudice requirements. Conley III, 249 F.3d at 46. We understandably said that there was no need for us to analyze the evidence ourselves under Wright and Brady or to remand for the district court to do so; our reason was that we read the district court's "as a matter of law" statement quoted above as its own ruling that the Wright and Brady tests had not been met. Id.

Conley then filed the present motion in the district court under 28 U.S.C. § 2255 (2000), based (more or less) on the same newly-discovered evidence. In September 2001, the district court granted the section 2255 motion, setting aside the conviction and ordering a new trial. Conley IV, 164 F.Supp.2d at 223-24. In doing so, the district court said that it was applying the Wright test, which it deemed to have been mandated by this court's earlier decision on the Rule 33 motion. Id. at 222. The district court found expressly that the new evidence was so powerful that it would probably cause an acquittal on retrial. Id. at 223. The district court never reached Conley's Brady claim because it found that a new trial was required under Wright. Id. at 222.

On the government's appeal, a divided panel of this court again reversed the district court. The panel majority said that the district court had decided in its earlier Rule 33 decision (Conley II) that the Wright and Brady standards could not be satisfied and that, on review (in Conley III), this court had declined to remand, ruling that the sentence should now be executed. The panel majority therefore held that the district court's ruling on the section 2255 motion was inconsistent with the law of the case doctrine. Again, the panel declined to address on the merits Conley's new evidence claims under Wright and Brady.

The en banc court then granted Conley's petition for rehearing, withdrawing (as is customary) the panel decision. We now hold that the law of the case doctrine has no application here and also that Brady but not Wright applies to new evidence claims made in a section 2255 motion. This leads us to vacate the district court's section 2255 decision and to remand so that Conley can obtain a ruling on his Brady claim. We decline to decide the Brady claim ourselves in the first instance.

We start with the law of the case doctrine on which the government continues to rely. The law of the case doctrine has two branches: one provides that, subject to exceptions, e.g., United States v. Bell, 988 F.2d 247, 251 (1st Cir.1993), a court must respect and follow its own rulings made at a prior stage in the same case; the other branch — sometimes known as the mandate rule — far more stringently precludes a lower court from contravening the rulings of a higher court made at an earlier stage of the same controversy.2 The difference is cogently described in our recent decision in Ellis v. United States, 313 F.3d 636, 646-48 (1st Cir.2002).

At the time that we decided Conley III, our reading of the district court's Rule 33 decision there under review (Conley II) was surely a plausible one. The district court had made clear in its own decision that it was not making a prejudice finding under Wright or Brady ("cannot be...

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