In re Pickard

• Decision Date: 18 June 2012
• Docket Number: 11–3031.,Nos. 11–3030,s. 11–3030
• Citation: 681 F.3d 1201,82 Fed.R.Serv.3d 1258
• Parties: In re William Leonard PICKARD, Defendant–Appellant–Movant, In re Clyde Apperson, Defendant–Appellant–Movant.
• Court: U.S. Court of Appeals — Tenth Circuit

681 F.3d 1201

82 Fed.R.Serv.3d 1258

In re William Leonard PICKARD, Defendant–Appellant–Movant, In re Clyde Apperson, Defendant–Appellant–Movant.

Nos. 11–3030, 11–3031.

United States Court of Appeals, Tenth Circuit.

June 18, 2012.

William K. Rork, Rork Law Office, Topeka, KS, for Defendants–Appellants–Movants.

James A. Brown, Assistant United States Attorney, (Barry R. Grissom, United States Attorney, with him on the response to the motion to remand), for Respondent–Appellee, United States of America.

Before HARTZ, O'BRIEN, and HOLMES, Circuit Judges.

HARTZ, Circuit Judge.

Defendants William L. Pickard and Clyde Apperson were convicted of drug-related crimes in the United States District Court for the District of Kansas. An important witness for the prosecution was informant Gordon Todd Skinner, a criminal associate of Defendants. After the convictions were affirmed on appeal, see United States v. Apperson, 441 F.3d 1162 (10th Cir.2006), Defendants filed motions for relief under 28 U.S.C. § 2255 claiming, among other things, that the prosecution had violated their rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), by suppressing evidence of Skinner's criminal and informant background. The district court rejected the claims. See United States v. Pickard, No. 00–40104–01/02–RDR, 2009 WL 939050 (D.Kan. Apr. 6, 2009). Defendants applied for certificates of appealability (COAs) to appeal the district court's decision, but we denied their applications. See United States v. Pickard, 396 Fed.Appx. 568 (10th Cir.2010); 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of § 2255 relief). They also filed district-court motions under Fed.R.Civ.P. 60(b) to set aside the court's judgment in the § 2255 proceedings, raising multiple claims. The claims relevant to this appeal are that evidence newly discovered by them through Freedom of Information Act (FOIA) requests shows (1) that the prosecution violated its Brady/Giglio duties at trial and (2) that the prosecution made a false statement in the § 2255 proceedings that forestalled the discovery from which they could have established that there had been a Brady/Giglio violation at trial.

The district court ruled that the claims of prosecutorial misconduct amounted to second-or-successive claims under § 2255, which it could not consider without authorization from this court, see28 U.S.C. §§ 2244(b)(3)(A); 2255(b). It therefore transferred the claims here. See In re Cline, 531 F.3d 1249, 1252 (10th Cir.2008) (district court may transfer rather than dismiss the matter if “it is in the interest of justice to do so”). We agree with the district court that Defendants' claims of Brady/Giglio violations at trial are second-or-successive claims; and because Defendants have not established the requisites for authorizing a second-or-successive claim, we deny authorization. On the other hand, Defendants' claims that prosecutorial misconduct in the § 2255 proceedings affected the integrity of those proceedings are proper Rule 60(b) claims; and we remand those claims to the district court for resolution.

I. BACKGROUND

In 2003 Defendants were convicted of conspiracy to manufacture lysergic acid diethylamide (LSD), see21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and possession with intent to distribute LSD, see21 U.S.C. § 841(a)(1) and (b)(1)(A). We affirmed the convictions on direct appeal. See Apperson, 441 F.3d 1162. In 2008 Defendants filed motions under 28 U.S.C. § 2255 to set aside their convictions and sentences. The “centerpiece” of these motions was the claim that “the government violated its Brady/Giglio obligations by suppressing the criminal and informant backgrounds of certain witnesses, including Gordon Todd Skinner.” Pickard, 2009 WL 939050, at *5. “[T]he majority of this claim [was] directed at [impeachment and exculpatory] evidence that was purportedly suppressed by the government concerning Skinner.” Id. at *6. In particular, Defendants argued that the government had failed to disclose relevant files from agencies other than the federal Drug Enforcement Administration (DEA). In response, the prosecution asserted (1) that no agency other than the DEA was involved in the LSD investigation and (2) that the prosecution was not aware of Skinner's involvement with any agency besides the DEA. Defendants nevertheless sought an order requesting the government to identify the federal agencies other than the DEA that had participated in their case. The district court denied these requests, stating that Defendants “have failed to point to any evidence showing any involvement by [agencies other than the DEA] in the investigation of this case.” Aplee. Supp.App. at 159 (Mem. & Order at 41, United States v. Pickard, No. 00–40101–01/02–RDR (D.Kan. Apr. 6, 2009)). It ultimately denied the § 2255 motions, ruling that the new evidence presented to the court by Defendants was cumulative and would not have caused a different result at trial. We declined to issue COAs for Defendants to appeal the denial. See Pickard, 396 Fed.Appx. 568.

While awaiting our ruling on the district-court denial of their § 2255 motions, Defendants filed in district court two Rule 60(b) motions to set aside the denial of their § 2255 motions. The first motion (Doc. 637) listed five matters that the district court had allegedly failed to consider. It also contended that the district court should reconsider Defendants' Brady/Giglio and prosecutorial-misconduct claims in light of newly discovered evidence referenced in their second Rule 60(b) motion (Doc. 639).

The second 60(b) motion alleged that evidence of “substantive undisclosed FBI and IRS records” newly obtained through Defendants' FOIA requests demonstrated that the prosecution had committed fraud because the FOIA documents showed that federal agencies other than the DEA were involved in investigating Defendants' drug-related activities. Aplee. Supp.App. at 207 (Rule 60(b)(2) & 60(b)(3) Mots. Based on Newly Discovered Evid. of Non–Disclosure of Records at 1, Pickard, No. 00–40104–01/02–RDR (D.Kan. Apr. 5, 2010)). They argued that these agencies might have additional undisclosed evidence that could have been used at trial to impeach Skinner.

The district court ruled that the first five claims in Doc. 637 were proper under Rule 60(b) because they challenged the integrity of the habeas proceedings; but it rejected them as moot or without merit. Defendants sought to appeal this ruling, but we denied a COA. See United States v. Pickard, 445 Fed.Appx. 61 (10th Cir.2011).

As for the remaining claims—the sixth claim in Doc. 637 and those in Doc. 639—the district court ruled that they “invite further review of the substantive habeas claims already decided on the merits and, thus, must be treated as a second or successive habeas petition requiring authorization by the Tenth Circuit Court of Appeals.” Aplee. Supp.App. at 283 (Mem. & Order at 9–10, Pickard, No. 00–40104–01/02–RDR (D.Kan. Jan. 24, 2011)). It transferred these claims to this court to give Defendants an opportunity to seek authorization under 28 U.S.C. § 2255(h). Defendants filed with us a motion to remand the claims to the district court on the ground that they are not second-or-successive § 2255 motions but are proper motions before the district court under Fed.R.Civ.P. 60(b).

II. ANALYSIS

The primary issue on appeal is whether the claims transferred by the district court were, as characterized by the district court, second-or-successive § 2255 claims, see28 U.S.C. § 2244(b)(3), or rather claims properly brought by Defendants under Fed.R.Civ.P. 60(b). The factual predicate for all the claims is the same: Defendants allege that through FOIA requests they have obtained evidence that agencies other than the DEA were involved in the LSD investigation and have had records related to Skinner. Their claims, as we understand them, are that this evidence establishes that the prosecution withheld exculpatory evidence at trial and that it then committed fraud in the § 2255 proceedings by falsely denying the involvement of other agencies. As we now explain, the claim of prosecutorial misconduct at trial was properly transferred to this court as a second-or-successive claim (although we decline to authorize Defendants to pursue the claim), but the claim of prosecutorial misconduct in the § 2255 proceedings is a proper Rule 60(b) claim that should be addressed in the first instance by the district court.

It is not unusual for defendants who have failed to obtain relief in federal habeas proceedings to attempt to bring new habeas claims in the guise of Rule 60(b) motions. Guided by the Supreme Court's decision in Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), we have explained how to distinguish a true Rule 60(b) motion from a new (that is, a second-or-successive) § 2255 claim:

The [Gonzalez ] Court said that whether a postjudgment pleading should be construed as a successive [petition] depends on whether the pleading (1) seeks relief from the conviction or sentence or (2) seeks to correct an error in the previously conducted habeas proceeding itself. A pleading asserting a “new ground for relief” from the state judgment is advancing a new claim and is therefore treated as a successive [petition].

United States v. Nelson, 465 F.3d 1145, 1147 (10th Cir.2006) (applying analysis in Gonzalez, which arose in the § 2254 context, to the § 2255 context).

Applying this law, we first consider Defendants' claims that the prosecution violated its Brady/Giglio duties at trial. These claims are certainly second-or-successive claims because they assert a basis for relief from the underlying convictions. See id. Defendants contend that the alleged Brady/Giglio violation entitles them to a new trial on the LSD charges.

The district court properly characterized the claims as second...