Scott v. United States, s. 15-11377

Citation890 F.3d 1239
Decision Date23 May 2018
Docket Number16-11950,Nos. 15-11377,s. 15-11377
Parties Gino Velez SCOTT, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

890 F.3d 1239

Gino Velez SCOTT, Petitioner-Appellant,
UNITED STATES of America, Respondent-Appellee.

Nos. 15-11377

United States Court of Appeals, Eleventh Circuit.

May 23, 2018

Rosemary Cakmis, Federal Public Defender's Office, 201 S Orange Ave. Suite 300, Orlando, FL 32801, James H. Burke, Jr., Lisa Call, Federal Public Defender's Office, 200 W Forsyth St. Suite 1240, Jacksonville, FL 32202-4326 for Petitioner-Appellant.

Roberta Josephina Bodnar, U.S. Attorney's Office—FLM, 35 SE 1st Ave Suite 300, Ocala, FL 34471, Michelle Thresher Taylor, Arthur Lee Bentley, III, U.S. Attorney's Office, 400 N Tampa St. Suite 3200, Tampa, FL 33602-4798, David Rodney Brown, U.S. Attorney's Office, 300 N Hogan St. Suite 700, Jacksonville, FL 32202-4270 for Respondent-Appellee.

Before ROSENBAUM and JILL PRYOR, Circuit Judges, and BARTLE,* District Judge.

ROSENBAUM, Circuit Judge:

Prosecutors are "servant[s] of the law" and should "prosecute with earnestness and vigor."

890 F.3d 1243

Berger v. United States , 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). But though the prosecutor "may strike hard blows, he is not at liberty to strike foul ones." Id.

More than fifty years ago, Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), established that a prosecutor’s suppression of material evidence favorable to the accused amounts to a foul blow. An actionable Brady violation—where the government withholds evidence that reasonably probably changes the outcome of a defendant’s trial—deprives the defendant of a fundamentally fair trial. Yet because of the nature of a Brady violation, a defendant, through no fault of his own, may not learn that such a violation even occurred until years after his conviction has become final and he has already filed a motion for post-conviction relief concerning other matters.

Meanwhile, the Antiterrorism and Effective Death Penalty Act ("AEDPA") imposes limitations on post-conviction relief a prisoner may obtain. This case examines whether under those limitations, a Brady claim can ever be cognizable in a second-in-time post-conviction motion under 28 U.S.C. § 2255 if it does not meet the criteria under the statute’s "gatekeeping" provision, 28 U.S.C. § 2255(h). And that presents a question of first impression in this Circuit.

But that the case involves an issue of first impression does not necessarily mean we are writing on a clean slate. As it turns out, our Circuit has already written all over this slate. Indeed, we decided this issue’s fraternal twin—whether a Brady claim can ever be cognizable in a second-in-time 28 U.S.C. § 2254 petition if it does not meet any of the criteria under 28 U.S.C. § 2244(b)(3)(A) —in Tompkins v. Secretary, Department of Corrections , 557 F.3d 1257 (11th Cir. 2009). Because we cannot distinguish Tompkins ’s reasoning from the facts or law at issue here, our Circuit’s prior-precedent rule binds us to apply Tompkins ’s rule: a second-in-time collateral motion based on a newly revealed Brady violation is not cognizable if it does not satisfy one of AEDPA’s gatekeeping criteria for second-or-successive motions.

Though we have great respect for our colleagues, we think Tompkins got it wrong: Tompkins ’s rule eliminates the sole fair opportunity for these petitioners to obtain relief. In our view, Supreme Court precedent, the nature of the right at stake here (the right to a fundamentally fair trial), and the Suspension Clause of the U.S. Constitution, Art. I, § 9, cl. 2, do not allow this. Instead, they require the conclusion that a second-in-time collateral claim based on a newly revealed actionable Brady violation is not second-or-successive for purposes of AEDPA. Consequently, such a claim is cognizable, regardless of whether it meets AEDPA’s second-or-successive gatekeeping criteria.

Petitioner-Appellant Gino Scott’s Brady claim may or may not be an actionable Brady violation. But we think that the district court in the first instance should have the chance to address that question by determining whether Scott’s Brady claim is, in fact, actionable—a question the district court never had reason to reach. Tompkins ’s rule precludes this from happening because it prohibits second-in-time collateral petitions based on all types of Brady claims—actionable and inactionable, alike—simply because they are Brady claims.

Establishing the correct rule and framework for determining whether any particular second-in-time collateral motion based on a Brady claim is cognizable is critically important to maintaining the integrity of our judicial system. No conviction resulting from a fundamentally unfair trial

890 F.3d 1244

should be permitted to stand.1 And when a petitioner could not have reasonably been expected to discover an actionable Brady violation before filing his first federal collateral-review motion, precluding the filing of a second-in-time petition addressing the newly discovered violation is doubly wrong. It rewards the government for its unfair prosecution and condemns the petitioner for a crime that a jury in a fair trial may well have acquitted him of. This not only corrodes faith in our system of justice, but it undermines justice itself, and it cannot be allowed. So we urge the Court to rehear this case en banc to establish the rule that our Constitution and Supreme Court precedent require.


In 2003, a grand jury indicted Scott and his codefendant Jose Tamayo for conspiracy to possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. Tamayo pled guilty, but Scott elected to go to trial.

At trial, the government presented evidence that Scott and Tamayo, longtime friends who made occasional drug deals, agreed with each other to buy cocaine from a couple of dealers in Jacksonville, Florida. Under the plan, Scott would give Tamayo cash, and Tamayo would drive from their hometown of Valdosta, Georgia, down to Jacksonville to make the purchase. To ensure the dealers’ bona fides, Scott first arranged to meet one of them before any money changed hands. But unbeknownst to Scott and Tamayo, the purported cocaine dealer he met was actually a government informant named Freddy Pena.

Pena did his job well, and Scott was satisfied. So Scott gave Tamayo $54,000 in cash to make the purchase. Tamayo then drove to Jacksonville and met Pena. No sooner did they convene than law enforcement arrived on the scene and arrested Tamayo.

Law enforcement presented Tamayo with an offer to cooperate, and he agreed. At their direction, Tamayo made several recorded phone calls to Scott in which Scott incriminated himself in the deal. Law enforcement then arrested Scott, too, charging him with conspiracy to possess cocaine for distribution.

To prove its case, among other evidence, the government called two DEA agents who showed the jury wads of $100 bills confiscated from Scott upon his arrest.

The government also presented Tamayo. He testified that he and Scott went together to the pre-purchase meetings with Pena, that Scott gave him the $54,000 to purchase the cocaine, and that after getting arrested, Tamayo made a number of recorded phone calls to Scott in which Scott made incriminating statements. The government also played recordings of those phone calls for the jury.

Besides this evidence, the government put on Pena to testify about his pre-purchase meeting with Scott. In its direct examination of Pena, the government prompted him to disclose four items of information that prosecutors had previously revealed to Scott through pretrial disclosures of evidence tending to impeach Pena, disclosures required under Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Those four items included the following: (1) that Pena was convicted in 1996 for conspiring to distribute heroin, (2) that the DEA had paid Pena more than $168,000 for cooperation

890 F.3d 1245

on about sixteen cases since 2001, (3) that Pena had been paid $3,500 for Scott’s case so far, and (4) that Pena would likely receive additional payment in the future.

To offset any negative effect of Pena’s answers to these questions, the government also asked Pena whether he had ever given testimony or information to the DEA that was "false or misleading," to which Pena replied, "No, sir." Then the government inquired as to whether Pena had told the truth in his past testimony as an informant. Pena answered, "Always."

As it turns out, Pena’s answers to these questions were false. But as we explain later, many years passed before the prosecuting U.S. Attorney’s Office realized that the government was in possession of information demonstrating the falsity of Pena’s answers and therefore before the prosecuting U.S. Attorney’s Office disclosed this information to Scott.

In the meantime, and without any knowledge of this information during the trial, on cross-examination, Scott’s attorney reiterated the details of Pena’s heroin-trafficking conviction and emphasized how Pena benefited from working as an informant. Pena acknowledged that he stood to receive more than $10,000 from the drug money seized from Scott. He also agreed that for him,...

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