Will v. Davis (In re Will)

• Decision Date: 05 August 2020
• Docket Number: No. 17-20604,consolidated with No. 17-70022,17-20604
• Citation: 970 F.3d 536
• Parties: IN RE: Robert Gene WILL, II, Movant, Robert Gene Will, II, Petitioner—Appellant, v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

970 F.3d 536

IN RE: Robert Gene WILL, II, Movant,Robert Gene Will, II, Petitioner—Appellant,

v.Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee.

No. 17-20604

consolidated with No. 17-70022

United States Court of Appeals, Fifth Circuit.

FILED August 5, 2020

Samy Kamal Khalil, Esq., Gerger Khalil Hennessy & McFarlane, Houston, TX, Jason Charles Ewart, Karen Christine Hogan Otto, Arnold & Porter Kaye Scholer, L.L.P., Washington, DC, Chad Flores, Esq., Beck Redden, L.L.P., Houston, TX, for Movant in 17-20604

Samy Kamal Khalil, Esq., Gerger Khalil Hennessy & McFarlane, Houston, TX, Jason Charles Ewart, Karen Christine Hogan Otto, Arnold & Porter Kaye Scholer, L.L.P., Washington, DC, Chad Flores, Esq., Beck Redden, L.L.P., Houston, TX, for Petitioner - Appellant in 17-70022

Jennifer Wren Morris, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Respondent - Appellee

Before Owen, Chief Judge, and Willett and Ho, Circuit Judges.

Per Curiam:

Robert Gene Will filed a second-in-time habeas petition raising Brady and actual innocence claims. The district court concluded that Will's petition was successive and transferred it to this court. Will appeals the district court's transfer order and alternatively asks this court for authorization to file a successive habeas application. We affirm the district court's transfer order and grant the motion for authorization. Will's arguments may not prevail, but he should be allowed to make them.

I

Robert Gene Will was convicted and sentenced to death for the capital murder of Deputy Barrett Hill. Will has consistently maintained his innocence and asserted that Michael Rosario, the man who fled from the police with Will the morning of the murder, committed the heinous crime. Will sought state appellate and state habeas remedies but received no relief.¹ Then Will filed his first federal habeas petition, asserting ineffective assistance of counsel and actual innocence. In 2010, the district court denied habeas relief but stayed the ineffective assistance of state habeas counsel claim, which remains pending.

After the denial of Will's first federal habeas petition, the Harris County District Attorney's Office provided information to the defense that it had not turned over previously. This new information includes a Harris County Sheriff's Department document (the Hit Document) revealing that after Hill's murder Rosario was placed in administrative separation because he "made contact ... to visit w[ith] David Cruz," apparently "soliciting [Cruz] to make [a] hit on [Will]." A related document revealed that Cruz was placed in administrative separation "due to [a] possible ... hit." There is also a report (the Schifani Report) in which Deputy Patricia Schifani documented that Rosario told her he was "part of the reason" Deputy Hill was murdered.

Will's trial attorneys signed affidavits stating that neither the Hit Document nor Schifani Report had been disclosed to them. Before trial, the prosecutor had agreed to disclose "[a]ll exculpatory evidence pursuant to Brady v. Maryland ,"² and Will's counsel had subpoenaed all inmate records concerning Rosario. Will's habeas counsel also obtained a subpoena for Rosario's prison records during his first federal habeas proceedings. But, despite the trial attorneys’ diligence, neither the Hit Document nor the Schifani Report were disclosed. An attorney at the DA's Office acknowledged that if she had known about the Hit Document and the Schifani Report, Brady and the DA Office's open file policy would have obligated her to disclose the documents to Will's trial counsel.

Based on this newly discovered evidence—again, disclosed by the DA's office only after Will's first federal habeas petition was denied—Will filed a third state habeas petition claiming that the prosecution unconstitutionally suppressed evidence under Brady and that he was actually innocent. The Texas Court of Criminal Appeals denied habeas relief. Will then filed a second-in-time federal habeas petition in district court seeking relief based on the State's alleged Brady violation.

The State filed a motion for summary judgment, asserting that the district court lacked jurisdiction to consider a successive habeas action under the Anti-Terrorism and Effective Death Penalty Act (AEDPA). The district court granted the State's motion and transferred the second federal habeas petition to this court. Will appeals the transfer order. Alternatively, he submitted a motion for authorization to file a second federal habeas petition. The clerk's office has consolidated the two cases.³

II

We first consider whether the district court properly transferred Will's habeas petition to this court. The dispositive issue is whether Will's petition is "second or successive" under 28 U.S.C. § 2244.⁴ If it is successive, the district court's transfer order was proper because only a court of appeals can authorize Will's habeas petition.⁵ If it is not successive, the district court erred in transferring Will's habeas petition to this court.

At the time the district court issued its transfer order, neither the Supreme Court nor the Fifth Circuit had yet decided section 2244 ’s application to Brady claims. Since then, however, we have definitively spoken on the matter and determined that Brady claims raised in second-in-time habeas petitions are successive regardless of whether the petitioner knew about the alleged suppression when he filed his first habeas petition.⁶ So even though Will did not know of the State's alleged Brady violation at the time he filed his first habeas petition, it is still subject to AEDPA's statutory requirements for filing a successive petition,⁷ and the district court did not err in transferring Will's habeas petition to this court.

III

Given that this petition is "second or successive," we next consider Will's alternative request for permission to file a successive habeas petition. Under 28 U.S.C. § 2244(b)(3)(C), "[t]he court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements" of § 2244(b). To receive authorization to file a successive habeas petition with the district court, Will must make a prima facie showing that: (1) his Brady claim was not presented in a prior application; (2) the factual predicate for the Brady claim "could not have been discovered previously through the exercise of due diligence"; and (3) he can establish by "clear and convincing evidence that, but for [the Brady ] error, no reasonable factfinder would have found" him guilty.⁸

A prima facie showing is "simply a sufficient showing of possible merit to warrant a fuller exploration by the district court."⁹ "If in light of the documents submitted with the application it appears reasonably likely that the application satisfies the stringent requirement for the filing of a second or successive petition, we shall grant the application."¹⁰ At this stage, this court does not rule on the ultimate merits; it simply determines if this "second or successive" habeas application deserves fuller review by the district court.¹¹ Will has made the requisite prima facie showing, so his motion for authorization is granted.

The State does not dispute that Will has "not presented" this claim in a prior federal habeas petition. However, it asserts that Will's counsel did not exercise due diligence and that the Brady claim fails to demonstrate actual innocence. We disagree with the State on both points.

A

Will made a prima facie showing that the factual predicate for his Brady claim could not have been previously discovered through due diligence.¹² While a "successive petitioner urging a Brady claim may not rely solely upon the ultimate merits of the Brady claim in order to demonstrate due diligence under § 2244(b)(2)(B),"¹³ if "[t]he trial record contains no evidence which would have put a reasonable attorney on notice," then trial counsel exercised due diligence.¹⁴ On the other hand, "where the petitioner was noticed pretrial of the existence of the factual predicate and of [its] ultimate potential exculpatory relevance," due diligence is not exercised.¹⁵

Section 2244(b)(2)(B) ’s due-diligence requirement "is measured objectively, not by the subjective diligence of the petitioner."¹⁶ As such, Will is required to show that the withheld records objectively could not have been discovered through the exercise of due diligence.¹⁷ The distinction between a subjective and objective inquiry was squarely addressed in Johnson v. Dretke . There, the State argued that Johnson could not satisfy the due-diligence prong because Johnson did not demonstrate that he exercised due diligence, and he never explained how he ultimately discovered the previously unavailable documents.¹⁸ We rejected that argument, holding that "the plain text of § 2244(b)(2)(B) suggests that due diligence is measured against an objective standard, as opposed to the subjective diligence of the particular petitioner of record."¹⁹ In applying this objective standard, we concluded that Johnson could not satisfy his burden because the record included evidence that would have put a reasonable person on notice that missing documents existed.²⁰ Johnson therefore could not explain why (or that) the evidence could not have been discovered sooner, and, thus, the due-diligence requirement was not satisfied.²¹

Such is not the case here. Objectively, Will has demonstrated that the withheld records could not have been discovered through due diligence. Here, the prosecutor "pledge[d] to [the] Court" that she would produce all Brady materials prior to trial; Deputy Strickland, who prepared the Hit Document, appeared in court after refusing to comply with a subpoena duces tecum and stated that he did not have any documents pertaining to Will's case;...