Prince Cert Petition As Filed 18-1112

No.
18-
IN THE
Supreme Court of the United States
________________
TERRENCE EDWIN PRINCE,

Petitioner,
v.
JOE A. LIZARRAGA, WARDEN OF MULE CREEK PRISON,
Respondent.
________________
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________
PETITION FOR A WRIT OF CERTIORARI

________________
Walter F. Brown, Jr. Robert M. Loeb
Sharon E. Frase Counsel of Record
Cynthia B. Stein ORRICK, HERRINGTON &
R. Rosie Gorn SUTCLIFFE LLP
ORRICK, HERRINGTON & 1152 15th Street, N.W.
SUTCLIFFE LLP Washington, DC 20005
405 Howard Street (202) 339-8400
San Francisco, CA 94105 rloeb@orrick.com
Martin A. Sabelli
LAW OFFICES OF
MARTIN A. SABELLI
740 Noe Street
San Francisco, CA 94114
Counsel for Petitioner
i
QUESTIONS PRESENTED
The Antiterrorism and Effective Death Penalty

Act (AEDPA) imposes gatekeeping provisions that
prohibit federal district courts from even considering
the merits of a “second or successive” habeas petition
raising a claim based on newly discovered evidence
unless the petitioner can “establish by clear and con-
vincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant
guilty of the underlying offense.” 28 U.S.C.
§ 2244(b)(2)(B). Read literally, that provision would
bar even a claim based on exculpatory evidence that
the state had intentionally suppressed until after a
petitioner filed his first habeas petition. As this Court
has repeatedly held, however, “second or successive”
is a term of art that does not apply to all second-in-
time petitions.
The questions presented are:
1. Is a Brady claim brought in a second-in-time

habeas petition “second or successive” for purposes of
AEDPA’s gatekeeping provisions when the claim is
based on previously undisclosed evidence?
2. Does applying AEDPA’s severely limiting gate-

keeping provisions to a second-in-time petition violate
the presumption against retroactivity, where the pe-
titioner’s initial petition was filed pre-AEDPA, and
the second-in-time petition would have survived un-
der the pre-AEDPA standard?
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ...................................... i

TABLE OF AUTHORITIES ......................................v
INTRODUCTION ..................................................... 1
OPINIONS AND ORDERS BELOW ........................ 3
JURISDICTION ........................................................ 4
STATUTORY PROVISIONS INVOLVED ............... 4
STATEMENT OF THE CASE .................................. 6
REASONS FOR GRANTING THE WRIT................ 9
I. The Court Should Grant Certiorari To
Determine Whether All Second-In-Time
Brady Claims Are “Second Or
Successive.” ..................................................... 9
A. The Ninth Circuit’s literal
interpretation of § 2244(b) is
contrary to this Court’s
precedent. ........................................... 11
B. The widespread impact of the
Ninth Circuit’s rule warrants
this Court’s review. ............................ 17
II. The Court Should Also Grant Review Of
The Ninth Circuit’s Holding That
§ 2244(b) Has No Impermissible
Retroactive Effect On A Petitioner
Whose First Petition Predates AEDPA. ...... 19
iii
A. The courts of appeals are divided

over the retroactive effect of
AEDPA’s gatekeeping provisions ...... 20
1. Four circuits hold that
AEDPA does not apply to a
second-in-time petition
that would have met the
gatekeeping standard in
effect when a petitioner
filed a first, pre-AEDPA
petition. ................................... 20
2. Six circuits hold that
AEDPA’s gatekeeping
provisions apply
regardless of when a first
petition was filed. .................... 24
B. The Ninth Circuit’s retroactivity
holding is contrary to this Court’s
precedent. ........................................... 28
III. This Case Is An Ideal Vehicle To
Resolve The Questions Presented................ 32
CONCLUSION ........................................................ 35
APPENDIX A — Memorandum, Prince

v. Lizarraga (9th Cir. May 8, 2018) ....................1a
APPENDIX B — Opinion, Brown v. Muniz

(9th Cir. May 8, 2018) ..........................................7a
iv
APPENDIX C — Order Accepting Findings,

Conclusions and Recommendations of the
United States Magistrate Judge, Prince v.
Lizarraga (C.D. Cal. Mar. 9, 2016) ...................41a
APPENDIX D — Report and Recommendation

of United States Magistrate, Prince v.
Lizarraga (C.D. Cal. Mar. 9, 2016) ...................43a
APPENDIX E — Order, Prince v.

Lizarraga (9th Cir. Jul. 20, 2018) .....................60a
v
TABLE OF AUTHORITIES
Page(s)
Cases
Alexander v. United States,

121 F.3d 312 (7th Cir. 1997)................................26
Apprendi v. New Jersey,

530 U.S. 466 (2000) ..............................................22
Barnes v. Forman,
No. 16-CV-12240, 2017 WL 467410
(E.D. Mich. Feb. 3, 2017) .....................................27
Ex Parte Bollman,
8 U.S. (4 Cranch) 75 (1807) .................................17
Brown v. Muniz,
889 F.3d 661 (9th Cir. 2018).................. 3, 8, 19, 33
Burris v. Parke,
95 F.3d 465 (7th Cir. 1996)..................................26
Calderon v. U.S. Dist. Court for the

Cent. Dist. Of Cal.,
128 F.3d 1283 (9th Cir. 1997)........................31, 32
In re Cannon,
No. 02-3080, 2002 WL 31426658
(D.C. Cir. Oct. 29, 2002) ......................................23
Carter v. Kelley,
No. 5:16-cv-00367,
2017 WL 4214139 (E.D. Ark. 2017) ....................19
vi
Castro v. United States,

540 U.S. 375 (2003) ..............................................12
Class v. United States,

138 S. Ct. 798 (2017)............................................33
Cress v. Palmer,
484 F.3d 844 (6th Cir. 2007)................................21
Daniels v. United States,

254 F.3d 1180 (10th Cir. 2001)................ 22, 23, 27
In re Davenport,
147 F.3d 605 (7th Cir. 1998)..........................26, 27
Douglas v. Workman,
560 F.3d 1156 (10th Cir. 2009)......................15, 17
In re Fashina,
486 F.3d 1300 (D.C. Cir. 2007) ............................23
Felker v. Turpin,
518 U.S. 651 (1996) .................................. 13, 24, 31
Ford v. Wainwright,
477 U.S. 399 (1986) ..............................................11
Gonzalez v. Crosby,
545 U.S. 524 (2005) ................................................9
Gonzalez v. Sec., Dep’t of Corr.,

366 F.3d 1253 (11th Cir. 2004)......................14, 15
Graham v. Johnson,
168 F.3d 762 (5th Cir. 1999)................................25
vii
In re Green,
144 F.3d 384 (6th Cir. 1998)................................29
Haley v. City of Boston,

657 F.3d 39 (1st Cir. 2011) ............................19, 27
In re Hanserd,
123 F.3d 922 (6th Cir. 1997).................... 20, 21, 22
Harrington v. Richter,
562 U.S. 86 (2011) ................................................16
I.N.S. v. St. Cyr,

533 U.S. 289 (2001) ............................ 13, 15, 28, 29
Landgraf v. USI Film Prods.,

511 U.S. 244 (1994) ............................ 20, 28, 29, 31
Lindh v. Murphy,
521 U.S. 320 (1997) .................................. 25, 28, 29
Lockyer v. Andrade,
538 U.S. 63 (2003) ................................................10
In re Magwood,
113 F.3d 1544 (11th Cir. 1997)............................24
Magwood v. Patterson,
561 U.S. 320 (2010) ............................ 10, 13, 14, 15
Mancuso v. Herbert,
166 F.3d 97 (2d Cir. 1999) ...................................25
McCleskey v. Zant,
499 U.S. 467 (1991) ..............................................13
viii
McQueen v. Whitley,
989 F.2d 184 (5th Cir. 1993)................................30
In re Medina,
109 F.3d 1556 (11th Cir. 1997).......... 24, 25, 26, 31
Milke v. Ryan,
711 F.3d 998 (9th Cir. 2013)..........................19, 27
Miller-El v. Cockrell,
537 U.S. 322 (2003) ..............................................12
In re Minarik,
166 F.3d 591 (3d Cir. 1999) ..................... 22, 27, 29
Mueller v. Angelone,
181 F.3d 557 (4th Cir. 1999)..........................29, 30
Muniz v. United States,

236 F.3d 122 (2d Cir. 2001) .................................17
Oil States Energy Servs., LLC v.

Greene’s Energy Grp., LLC, et al.,
138 S. Ct. 1365 (2017)..........................................34
Panetti v. Quarterman,
551 U.S. 930 (2007) .................. 2, 10, 11, 12, 13, 17
Pratt v. United States,

129 F.3d 54 (1st Cir. 1997) ............................25, 26
Reyes v. Keane,
90 F.3d 676 (2d Cir. 1996) ...................................32
Rhines v. Weber,
544 U.S. 269 (2005) ..............................................12
ix
Scott v. United States,

890 F.3d 1239 (11th Cir. 2018).... 12, 14, 15, 18, 19
Slack v. McDaniel,
529 U.S. 473 (2000) ........................................10, 11
Stewart v. Martinez-Villareal,
523 U.S. 637 (1998) ..............................................11
Strickler v. Greene,
527 U.S. 263 (1999) ..........................................7, 16
Tompkins v. Sec’y, Dept. of Corr.,

557 F.3d 1257 (11th Cir. 2009)............................14
United States v. Lopez,

577 F.3d 1053 (9th Cir. 2009)............ 12, 14, 15, 16
United States v. Olsen,

737 F.3d 625 (9th Cir. 2013)................................17
United States v. Orozco-Ramirez,

211 F.3d 862 (5th Cir. 2000).................... 25, 26, 27
United States v. Ortiz,

136 F.3d 161 (D.C. Cir. 1998) .................. 22, 23, 29
United States v. Villa-Gonzalez,

208 F.3d 1160 (9th Cir. 2000)........................24, 33
In re Wogenstahl,
902 F.3d 621 (6th Cir. 2018)................................19
Wood v. Milyard,
566 U.S. 463 (2012) ..............................................31
x
Statutes
28 U.S.C. § 1254(1)......................................................4
28 U.S.C. § 2244(b)............................................ passim
28 U.S.C. § 2244(b)(2)(B) ........................................1, 3
28 U.S.C. § 2244(b)(2)(B)(ii) ............................ 9, 10, 30
28 U.S.C. § 2244(b)(3)(A) ............................................8
28 U.S.C. § 2244(d)(1) ...............................................18
28 U.S.C. § 2244(d)(2) ...............................................18
28 U.S.C. § 2254(d)................................................9, 16
28 U.S.C. § 2255 ............................................ 21, 25, 26
28 U.S.C. § 2255(h) ...................................................14
Cal. Penal Code § 190.2(a)(17)(i) (1980) .....................6
Other Authorities
Elizabeth Napier Dewar, A Fair Trial

Remedy for Brady Violations, 115
YALE L. REV. 1450 (2006) .....................................18
Expanded Discovery in Criminal Cases,

THE JUSTICE PROJECT (2007) ...............................18
xi
Vida B. Johnson, Federal Criminal

Defendants out of the Frying Pan
and into the Fire – Brady and the
United States Attorney’s Office, 67
CATH. U. L. REV. 321 (2018)...........................17, 18
Cynthia E. Jones, A Reason to Doubt:

The Suppression of Evidence and the
Inference of Innocence, 100 J. CRIM.
L. & CRIMINOLOGY 415 (2010) ..............................17
Order, In re: George Edward Austin,

No. 13-2345 (3d Cir. Aug. 5, 2013) ......................27
Barry Scheck et al., Actual Innocence:

Five Days to Execution, and Other
Dispatches From the Wrongly
Convicted (2000) ..................................................18
David E. Singleton, Brady Violations:

An In-depth Look at “Higher
Standard” Sanctions for a High
Standard Profession,
15 WYO. L. REV. 139 (2015) .................................18
INTRODUCTION
This case presents two cert-worthy questions

about the reach of AEDPA’s limits on “second or suc-
cessive” habeas petitions. Both are of fundamental
importance to federal habeas practice. And both are
of enormous consequence to Petitioner Terrence
Prince, who, under the Ninth Circuit’s rule, is essen-
tially foreclosed from any federal review of his meri-
torious Brady claim simply because he filed a habeas
petition in 1991, when he (1) had no reason to know
of the Brady violation, because the suppressed evi-
dence had not yet been disclosed, and (2) had no rea-
son to know that AEDPA might foreclose him from
bringing a Brady claim in the future.
I. In 2010, Mr. Prince learned that the State had

withheld an exculpatory eyewitness statement from
his 1982 murder trial. Because the State did not dis-
close the evidence until long after Mr. Prince’s first
state and federal habeas petitions were denied, Mr.
Prince had to bring his Brady claim in a second fed-
eral habeas petition. The Ninth Circuit concluded
that Mr. Prince’s petition was subject to AEDPA’s
gatekeeping restrictions on “second or successive” pe-
titions, 28 U.S.C. § 2244(b), and that he therefore
could not even present that claim to the district court
unless the court of appeals found “clear and convinc-
ing evidence that, but for constitutional error, no rea-
sonable factfinder would have found [Mr. Prince]
guilty of the underlying offense.” 28 U.S.C.
§ 2244(b)(2)(B).
The Ninth Circuit’s holding that claims based on

newly revealed Brady violations are subject to
2
AEDPA’s gatekeeping provisions simply because they

follow a previously adjudicated habeas petition is con-
trary to this Court’s precedent. This Court has ex-
plained that a new petition is “second or successive”
for purposes of § 2244(b) only if it raises claims that
were or could have been adjudicated on their merits
in an earlier petition. See Panetti v. Quarterman, 551
U.S. 930, 945-46 (2007). The Ninth Circuit’s contrary
conclusion flouts that rule and, if allowed to stand,
would incentivize prosecutors to withhold evidence
until after a petitioner’s initial habeas petition is ad-
judicated. The result is to insulate the prosecutor’s
misdeeds in withholding exculpatory evidence from
judicial review. It also illogically requires a petitioner
to raise a Brady claim before it ripens or forego any
opportunity for federal habeas review of a meritorious
constitutional claim. In the Ninth Circuit’s own
words, its holding would “saddle petitioners with a
stringent standard of proof that is a function of the
government’s own neglect, or, worse, malfeasance[].”
Pet. App. 39a.
II. The Ninth Circuit’s holding also implicates a

deep and acknowledged divide amongst the courts of
appeals over the question whether AEDPA’s gate-
keeping provisions have an impermissible retroactive
effect. The Third, Sixth, Tenth, and D.C. Circuits
have held that AEDPA’s bars on “second or succes-
sive” petitions do not apply if a prisoner filed an initial
petition under pre-AEDPA law and could have
brought a successive petition under the law in effect
at that time. The First, Second, Fifth, Seventh, and
Eleventh Circuits agree with the Ninth Circuit that
AEDPA’s gatekeeping provisions apply regardless of
when a first petition was filed.
3
The Ninth Circuit’s retroactivity ruling is con-

trary to this Court’s precedent. At the time Mr. Prince
filed his 1991 habeas petition, he was not precluded
from bringing a meritorious Brady claim in a succes-
sive petition to challenge either his sentence or his
conviction should Brady evidence later come to light.
Section 2244(b)(2)(B), if applied, would now bar him
from bringing that same claim absent a showing of ac-
tual innocence. AEDPA would thus attach a severe
retroactive consequence to his pre-AEDPA act of fil-
ing an initial petition. Because AEDPA contains no
unambiguous statement of congressional intent that
its gatekeeping provisions apply to cases in which the
first habeas petition was filed before AEDPA’s enact-
ment, the traditional presumption against retroactiv-
ity mandates the conclusion that § 2244(b) does not
apply.
The petition should be granted.
OPINIONS AND ORDERS BELOW
The decision of the United States Court of Ap-

peals for the Ninth Circuit is unpublished but availa-
ble at 733 F. App’x 382 and reproduced at Pet. App.
1a. The decision of the Ninth Circuit in Brown v. Mu-
niz, which the decision below incorporates, is pub-
lished at 889 F.3d 661 and reproduced at Pet. App. 7a.
The decision of the district court adopting the report
and recommendation of the magistrate judge, and the
magistrate judge’s report and recommendation, are
unpublished but available at 2016 WL 927134 and
2016 WL 922636, respectively, and reproduced at Pet.
App. 41a and 43a, respectively.
4
JURISDICTION
The United States Court of Appeals for the Ninth

Circuit issued its decision on May 8, 2018, Pet. App.
1a, and denied Mr. Prince’s timely petition for rehear-
ing and rehearing en banc on July 20, 2018, Pet. App.
60a-61a. On September 20, 2018, Chief Justice Rob-
erts extended the deadline for filing this petition to
and including November 19, 2018. This Court has ju-
risdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
28 U.S.C. § 2244(b) provides:
(1) A claim presented in a second or successive ha-

beas corpus application under section 2254 that was
presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive ha-

beas corpus application under section 2254 that was
not presented in a prior application shall be dismissed
unless—
(A) the applicant shows that the claim relies on a

new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that
was previously unavailable; or
(B)(i) the factual predicate for the claim could not

have been discovered previously through the exercise
of due diligence; and (ii) the facts underlying the
claim, if proven and viewed in light of the evidence as
a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error,
5
no reasonable factfinder would have found the appli-

cant guilty of the underlying offense.
(3)(A) Before a second or successive application

permitted by this section is filed in the district court,
the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to
consider the application.
(B) A motion in the court of appeals for an order

authorizing the district court to consider a second or
successive application shall be determined by a three-
judge panel of the court of appeals.
(C) The court of appeals may authorize the filing

of a second or successive application only if it deter-
mines that the application makes a prima facie show-
ing that the application satisfies the requirements of
this subsection.
(D) The court of appeals shall grant or deny the

authorization to file a second or successive application
not later than 30 days after the filing of the motion.
(E) The grant or denial of an authorization by a

court of appeals to file a second or successive applica-
tion shall not be appealable and shall not be the sub-
ject of a petition for rehearing or for a writ of
certiorari.
(4) A district court shall dismiss any claim pre-

sented in a second or successive application that the
court of appeals has authorized to be filed unless the
applicant shows that the claim satisfies the require-
ments of this section.
6
STATEMENT OF THE CASE
Thirty-six years ago, Terrence Prince was con-

victed and sentenced to life without parole for the spe-
cial-circumstance murder of the owner of a small
restaurant and check-cashing business. Pet. App. 2a.
The trial hinged on the testimony of two eyewit-
nesses; no physical evidence linked Mr. Prince to the
crime. The special circumstance—which the State
charged based on its theory that Mr. Prince was the
shooter—triggered a mandatory sentence of either life
without parole or death. Cal. Penal Code
§ 190.2(a)(17)(i) (1980). Mr. Prince’s direct appeal and
pre-AEDPA state and federal habeas petitions were
unsuccessful. Pet. App. 3a.
Decades after the trial, during proceedings on a

second state habeas petition, the Los Angeles County
District Attorney’s Office produced critical, previously
undisclosed evidence relating to Mr. Prince’s trial: a
page of notes taken by an LAPD officer on the day of
the crime. Id. The notes detailed the officer’s inter-
view with Nelida Walsh, who at the time of the shoot-
ing was across the street from the restaurant. When
she heard shots, Ms. Walsh saw a man standing in
the doorway of the restaurant moving a firearm out of
a shooting position. Id.; C.A. Excerpts of Record (ER)
38.
Walsh’s description of the man was incompatible

with the accounts of the State’s two eyewitnesses, one
of whom was a minor, had suffered a head injury at
the scene, and did not see the shooting. Pet. App. 48a;
ER 78, 85. The man Ms. Walsh described wore differ-
ent clothing, carried a different weapon, and was in a
7
different location than the two robbers the State’s wit-

nesses described. Pet. App. 3a-4a; ER 100. But the
State never disclosed anything about Ms. Walsh or
her statements until decades after Mr. Prince’s trial.
Pet. App. 3a.
Mr. Prince amended his state habeas petition to

add a Brady claim based on the Walsh evidence. Pet.
App. 46a. Following a 42-day evidentiary hearing, the
judge granted the petition. Pet. App. 4a; ER 104. The
court found that the Walsh evidence was suppressed
and was exculpatory because it tended to show that
Mr. Prince was not at the scene at all (and therefore
not guilty of murder) or that there was “an alternate
suspect who arguably could have been the shooter,”
undermining the State’s theory that led to the special
circumstance and mandatory sentence of life without
parole. ER 100-04. The court also concluded that the
evidence was material, i.e., that there was “a reason-
able probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have
been different,” Strickler v. Greene, 527 U.S. 263, 279
(1999) (internal quotation marks omitted). ER 104.
The California Court of Appeal reversed, second-

guessing the trial court’s finding of “materiality” of
the suppressed evidence. Pet. App. 4a. The California
Supreme Court denied review. Id.
Mr. Prince filed a federal habeas petition based on

the Walsh evidence, arguing that, as the trial court
found, the suppressed evidence was material to both
his murder conviction and the special circumstance
that led to his sentence of life without parole. Id. The
district court did not reach the merits. It dismissed for
8
lack of jurisdiction. Id. The district court held that Mr.

Prince’s petition was “second or successive” within the
meaning of § 2244(b) because he had previously filed
a federal habeas petition that was adjudicated on the
merits, and thus he could not pursue his Brady claim
without permission from the Ninth Circuit upon a
showing that his claim meets the extremely restric-
tive gatekeeping criteria for “second or successive” pe-
titions. Pet. App. 56a-57a; see 28 U.S.C.
§ 2244(b)(3)(A). It also rejected Mr. Prince’s argument
that AEDPA imposes impermissible retroactive con-
sequences on his pre-AEDPA act of filing a first peti-
tion. Pet. App. 56a n.7.
The court of appeals affirmed. It rejected Mr.

Prince’s argument that newly disclosed Brady claims
are not “second or successive” within the meaning of
§ 2244(b), citing “the reasons set forth in [its] concur-
rently filed published opinion [in] Brown v. Muniz, 16-
15442, [889] F.3d [661] (9th Cir. 2018),” which was ar-
gued the same day. Pet. App. 5a-6a. 1 The court “ap-
preciate[d] that [its] application of AEDPA’s second or
successive bar to Brady claims … [would] saddle peti-
tioners with a stringent standard of proof that is a
function of the government’s own neglect, or worse,
malfeasance.” Pet. App. 39a. But the court believed
1 The petitioner in Brown has also filed a petition for a writ
of certiorari seeking review of the first question presented in this

petition. See Brown v. Hatton, No. 18-__ (petition for cert. filed
Nov. 19, 2018). The first question presented is also presented in
Solorio v. Muniz, No. 18-6396 (petition for cert. filed October 17,
2018), and in Scott v. United States, No. 18-__ (petition for cert.
filed Nov. 14, 2018).
9
that “harsh” and “seem[ingly] inequitable” rule accu-

rately reflects “the framework Congress established.”
Id. Citing prior circuit precedent, it also held that
AEDPA’s gatekeeping provisions on “second or suc-
cessive” petitions apply regardless of whether the ini-
tial petition was filed pre-AEDPA. Pet. App. 4a-6a.
Mr. Prince filed a petition for rehearing en banc,

which was denied. Pet. App. 60a.
REASONS FOR GRANTING THE WRIT
I. The Court Should Grant Certiorari To

Determine Whether All Second-In-Time
Brady Claims Are “Second Or Successive.”
Section 2244(b) provides that claims brought in

“second or successive” petitions must be “dismissed”
except in specific, narrow circumstances. Even if a
claim is based on evidence that “could not have been
discovered previously through the exercise of due dil-
igence,” a “second or successive” petition must be dis-
missed unless the petitioner can show that “the facts
underlying the claim, if proven and viewed in light of
the evidence as a whole, would be sufficient to estab-
lish by clear and convincing evidence that, but for con-
stitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.”
28 U.S.C. § 2244(b)(2)(B)(ii). That standard, com-
monly referred to as an “actual innocence” standard,
see Gonzalez v. Crosby, 545 U.S. 524, 530 (2005), is far
more stringent than the already rigorous standard for
initial federal habeas petitions filed under 28 U.S.C.
§ 2254(d). And § 2244(b) is much more limited in
10
scope: Whereas an initial habeas petition may chal-

lenge the constitutionality of a sentence as well as a
conviction, see, e.g., Lockyer v. Andrade, 538 U.S. 63,
71-72 (2003), a petition deemed “second or successive”
under § 2244(b) may raise a claim based on newly dis-
covered evidence only to challenge conviction of the
“underlying offense,” 28 U.S.C. § 2244(b)(2)(B)(ii).
This Court has “declined to interpret ‘second or

successive’ as referring to all [federal habeas] applica-
tions filed second or successively in time.” Panetti, 551
U.S. at 944. “Second or successive” is a “term of art.”
Slack v. McDaniel, 529 U.S. 473, 486 (2000). In Pan-
etti, this Court concluded that “[t]he statutory bar on
‘second or successive’ applications does not apply” to
claims “brought in an application filed when the claim
is first ripe.” Panetti, 551 U.S. at 945-47. Seven Jus-
tices later affirmed that “a ‘claim’ that ‘the petitioner
had no fair opportunity to raise’ in his first habeas pe-
tition is not a ‘second or successive’ application.” Mag-
wood v. Patterson, 561 U.S. 320, 343 (2010) (Breyer,
J., concurring); see id. at 349 (Kennedy, J., dissenting)
(“Panetti establishes that deciding whether an appli-
cation itself is ‘second or successive’ requires looking
to the nature of the claim that the application raises
to determine whether the petitioner had a full and
fair opportunity to raise that claim in his earlier peti-
tion.”).
The Ninth Circuit acknowledged that previously

unripe claims are not “second or successive” and are
not subject to § 2244(b)’s severe restrictions. Pet. App.
25a-26a. It nevertheless held that a Brady claim
based on previously undisclosed evidence is “second
or successive.” That conclusion is contrary to this
11
Court’s precedent, produces perverse and unconscion-

able results, and should be reversed.
A. The Ninth Circuit’s literal interpretation

of § 2244(b) is contrary to this Court’s
precedent.
1. In Panetti, this Court addressed whether a

claim that a prisoner is too mentally ill to be executed
under Ford v. Wainwright, 477 U.S. 399 (1986),
brought for the first time once the prisoner’s execu-
tion was imminent, is “second or successive” under
AEDPA. Panetti, 551 U.S. at 945. The Court began by
examining the types of claims it had already deter-
mined were not “second or successive.” For example,
when a first petition is dismissed for failure to ex-
haust state remedies, a second petition is not “second
or successive.” 551 U.S. at 944 (citing Slack v. McDan-
iel, 529 U.S. 473, 487 (2000)). Similarly, a claim
brought in a subsequent petition is not “second or suc-
cessive” where the same claim was previously dis-
missed as premature, Panetti, 551 U.S. at 944 (citing
Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45
(1998)); otherwise, a petition dismissed “for technical
procedural reasons would bar the prisoner from ever
obtaining federal habeas review,” Stewart, 523 U.S. at
644-45.
Drawing on these cases, the Court looked to three

factors to determine whether a claim presented for
the first time in second-in-time petition is “second or
successive”: (1) the implications for habeas practice if
AEDPA’s gatekeeping provisions applied; (2)
“AEDPA’s purposes”; and (3) the Court’s prior habeas
corpus decisions, including decisions applying the
12
pre-AEDPA abuse-of-writ doctrine. Panetti, 551 U.S.

at 943-47; see also United States v. Lopez, 577 F.3d
1053, 1063 (9th Cir. 2009); Scott v. United States, 890
F.3d 1239, 1248 (11th Cir. 2018).
The Court first considered the practical impact of

treating the claim as “second or successive.” Panetti,
551 U.S. at 945-46. It recognized that applying
AEDPA’s gatekeeping provisions to a Ford claim
raised in a second-in-time petition would present pe-
titioners with an untenable dilemma: “forego the op-
portunity to raise a Ford claim in federal court; or
raise the claim in a first federal habeas application …
even though it is premature.” Id. at 943. Petitioners
who declined to file an unripe, anticipatory claim
would “run the risk … of ‘forever losing their oppor-
tunity for any federal review of their unexhausted
claims.’” Id. at 945-46 (quoting Rhines v. Weber, 544
U.S. 269, 275 (2005)). The Court “resisted an interpre-
tation of the statute that would ‘produce [those] trou-
blesome results,’ ‘create procedural anomalies,’ and
‘close our doors to a class of habeas petitioners seek-
ing review without any clear indication that such was
Congress’ intent.’” Id. at 946 (quoting Castro v. United
States, 540 U.S. 375, 381 (2003)).
Panetti also took account of AEDPA’s purposes of

promoting “comity, finality, and federalism.” Id. at
945 (quoting Miller-El v. Cockrell, 537 U.S. 322, 337
(2003)). The Court observed that “an empty formality
requiring prisoners to file unripe Ford claims neither
respects the limited legal resources available to the
States nor encourages the exhaustion of state reme-
dies.” Id. at 946. Moreover, this Court reasoned,
“AEDPA’s concern for finality… is not implicated” by
13
consideration of a claim that could not have been re-

solved in a prior petition. Id.
The Panetti Court also considered, in addition to

post-AEDPA decisions like Slack and Stewart, “deci-
sions predating the enactment of [AEDPA].” Id. at
943-44. The result under pre-AEDPA law was rele-
vant because, as this Court observed, AEDPA was not
a departure from the principles underlying the prior
standard, but rather the codification of a modified
pre-AEDPA abuse-of-the writ rule. Id. at 947 (citing
Felker v. Turpin, 518 U.S. 651, 652, 664 (1996)); cf.
I.N.S. v. St. Cyr, 533 U.S. 289, 305 (2001) (declining
to interpret AEDPA to bar consideration of a category
of claims where that result “would represent a depar-
ture from historical practice”). Before AEDPA, a court
could consider a claim not raised in a previous habeas
petition if the petitioner could show his claim was not
an “abuse of the writ,” which he could do by showing
cause for failing to raise the claim earlier and preju-
dice therefrom. McCleskey v. Zant, 499 U.S. 467, 489,
494-95 (1991). In Panetti, consideration of pre-
AEDPA law weighed against dismissing the Ford
claim as “second or successive” because a previously
unripe claim was not an abuse of the writ. Panetti,
551 U.S. at 947.
This Court has since reaffirmed that the factors

Panetti enumerated govern the question whether a
second-in-time petition challenging the same under-
lying judgment is “second or successive.” In Magwood
v. Patterson, the Court fractured over the question
whether a challenge to a new state court judgment is
“second or successive” if the petitioner could have
mounted the same challenge to the prior judgment.
14
The majority stressed, however, that it was not dis-

turbing Panetti’s basic rules for determining “whether
an application challenging the same state-court judg-
ment” is “second or successive.” 561 U.S. at 335 n. 11.
And seven Justices expressly endorsed “Panetti’s
holding that … a ‘claim’ that ‘the petitioner had no
fair opportunity to raise’ in his first habeas petition is
not … ‘second or successive.’” Id. at 343 (Breyer, J.,
concurring; id. at 344-46 (Kennedy, J., dissenting).
2. The principles articulated in Panetti dictate

that a second-in-time Brady claim based on a newly
disclosed violation is not “second or successive.”
Applying AEDPA’s gatekeeping provisions to

Brady claims like Mr. Prince’s would require petition-
ers to make the same choice deemed unacceptable in
Panetti: “file unripe (and, in many cases, meritless)
Brady claims in each and every first [habeas] applica-
tion,” or wait, and file a “second or successive” Brady
claim that will not even be considered on the merits
unless it proves the petitioner’s actual innocence.
Scott, 890 F.3d at 1250 (criticizing the Eleventh Cir-
cuit’s prior holding in Tompkins v. Secretary, Depart-
ment of Corrections, 557 F.3d 1257 (11th Cir. 2009)).
In either scenario, entire subsets of potentially meri-
torious Brady claims will be dismissed without con-
sideration due to no fault of the petitioner’s. Lopez,
577 F.3d at 1064 (leaving open the first question pre-
sented here). As the Scott court recognized, that
“might well work a suspension of the writ of habeas
corpus.” Scott, 890 F.3d at 1251; 2 accord Magwood,
2 Scott and Lopez involved motions filed under 28 U.S.C.

§ 2255(h), which governs “second or successive” post-conviction
15
561 U.S. at 349-50 (Kennedy, J., dissenting). “A con-

struction of [AEDPA] that would entirely preclude re-
view of a pure question of law by any court would give
rise to substantial constitutional questions.” St. Cyr,
533 U.S. at 300.
Barring consideration of newly disclosed Brady

claims would be contrary to AEDPA’s fundamental
goals of comity, finality, and federalism. Where the
state is the cause of the belated discovery of evidence,
“[a]ny delay, inefficiency, or waste of judicial re-
sources stems from the prosecution.” Douglas v.
Workman, 560 F.3d 1156, 1195 (10th Cir. 2009); ac-
cord Scott, 890 F.3d at 1252. Indeed, the Ninth Cir-
cuit’s rule “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.” Scott, 890 F.3d at 1244; accord Lopez, 577 F.3d at
1064-65 (recognizing that “perverse” result). “It can-
not have been Congress’s intent in enacting AEDPA”
to encourage prosecutors to conceal exculpatory evi-
dence “until it is too late, preventing the habeas peti-
tioner from asserting the existence of such
[exculpatory evidence] in his initial habeas petition
and thereby insulating egregious government behav-
ior from any habeas review.” Douglas, 560 F.3d at
challenges to federal, as opposed to state, judgments. Section

2255(h)’s gatekeeping restrictions for “second or successive” mo-
tions are nearly identical to the restrictions set forth in § 2244(b),
so courts generally “interpret[] both provisions interchangea-
bly.” Pet. App. 21a n.4; see also, e.g., Gonzalez v. Sec., Dep’t of
Corr., 366 F.3d 1253, 1262 (11th Cir. 2004) (noting “no material
difference in the relevant statutory language”).
16
1195. “Finality,” in that sense, is “certainly not an

AEDPA goal.” Lopez, 577 F.3d at 1065.
With respect to pre-AEDPA law, the Ninth Cir-

cuit acknowledged that a material Brady claim based
on a newly disclosed violation establishes cause and
prejudice and therefore would not have been barred
as an abuse of the writ. Pet. App. 33a, see Lopez, 577
F.3d at 1064. “[I]nterference by officials,” including
failure to disclose exculpatory evidence, is cause.
Strickler, 527 U.S. at 283-84 & n. 24 (citation omit-
ted). The materiality of the evidence establishes prej-
udice. Id. at 289; Lopez, 577 F.3d at 1060 n. 5.
3. The Ninth Circuit acknowledged the Panetti

framework, Pet. App. 21a-28a, but believed that cut-
ting off all Brady claims that could not have been
raised in an earlier petition was required absent a
showing of actual innocence. The court thought such
a rule would further “finality” by “limiting collateral
attacks on state judgments to those where ‘extreme
malfunctions in the state criminal justice systems’ oc-
curred.” Pet. App. 27a (quoting Harrington v. Richter,
562 U.S. 86, 102-03 (2011)).
While the Ninth Circuit relied on Richter, there

this Court observed that § 2254(d)—the standard that
applies to a claim that is not “second or successive”—
already ensures that federal courts grant relief from
state judgments only when “there was an error well
understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” 562
U.S. at 103. Only clearly meritorious Brady claims
will result in relief under that standard. Section
2244(b), on the other hand, would bar even clearly
17
meritorious Brady claims. There is no legitimate “fi-

nality” interest in insulating such substantial prose-
cutorial errors from any federal review.
The Ninth Circuit tried to justify its illogical read-

ing of AEDPA by noting that there was no Suspension
Clause concern because some newly disclosed Brady
claims may meet § 2244(b)’s requirements. Pet. App.
39a. But that bar is “almost insurmountable,” Doug-
las, 560 F.3d at 1192, and the Suspension Clause pro-
tects against more than just “strict impossibility.”
Muniz v. United States, 236 F.3d 122, 128 (2d Cir.
2001); see Ex Parte Bollman, 8 U.S. (4 Cranch) 75, 95
(1807) (Marshall, C.J.). The loss of any meaningful op-
portunity for federal habeas review is exactly the
“troublesome result[]” this Court rejected in Panetti.
551 U.S. at 946.
B. The widespread impact of the Ninth

Circuit’s rule warrants this Court’s
review.
The question presented will continue to recur.

“Brady violations in state and federal courts have
been continuous and persistent since the Brady deci-
sion.” Cynthia E. Jones, A Reason to Doubt: The Sup-
pression of Evidence and the Inference of Innocence,
100 J. CRIM. L. & CRIMINOLOGY 415, 434 (2010). They
are “the most common form of prosecutorial miscon-
duct cited by courts when overturning convictions.”
Vida B. Johnson, Federal Criminal Defendants out of
the Frying Pan and into the Fire – Brady and the
United States Attorney’s Office, 67 CATH. U. L. REV.
321, 322-23 (2018) (noting that over the past two dec-
ades, “1,100 people have been exonerated after it was
18
found that the prosecution had engaged in miscon-

duct.”); see also United States v. Olsen, 737 F.3d 625,
626 (9th Cir. 2013) (Kozinski, C.J., dissenting from
denial of rehearing en banc) (referring to the “epi-
demic” of Brady violations). One study found that
“prosecutorial suppressions of evidence accounted for
sixteen percent of reversals at the state postconvic-
tion stage” in capital cases. Elizabeth Napier Dewar,
A Fair Trial Remedy for Brady Violations, 115 YALE
L. REV. 1450, 1454 n.12 (2006).
These data are based solely on those violations

that have been brought to light. Because of the nature
of Brady violations, it is impossible to know just how
many more violations go unnoticed and uncured. See
Scott, 890 F.3d at 1250. The only certainty is that
Brady violations occur often, accounting for a sub-
stantial percentage of wrongful convictions. See
Dewar, supra, at 18; Johnson, supra, at 322-23; cf.
Barry Scheck et al., Actual Innocence: Five Days to
Execution, and Other Dispatches From the Wrongly
Convicted 246 (2000) (finding prosecutorial miscon-
duct a cause of wrongful conviction in forty-two per-
cent of sixty-two cases examined).
Exculpatory evidence often does not arise until

years after a conviction. See David E. Singleton,
Brady Violations: An In-depth Look at “Higher Stand-
ard” Sanctions for a High Standard Profession, 15
WYO. L. REV. 139, 156 (2015). By the time the evi-
dence is disclosed, a first habeas petition—which
must be filed within one year of the final judgment,
see 28 U.S.C. § 2244(d)(1)-(2)—likely will have al-
ready been adjudicated. Expanded Discovery in Crim-
inal Cases, THE JUSTICE PROJECT, 6 (2007) (noting
19
that exculpatory evidence is sometimes withheld for

decades); see, e.g., Haley v. City of Boston, 657 F.3d 39,
45 (1st Cir. 2011) (impeachment evidence came to
light more than thirty years after conviction); Milke v.
Ryan, 711 F.3d 998 (9th Cir. 2013) (exculpatory evi-
dence came to light more than a decade after convic-
tion). Petitioners routinely file second-in-time habeas
petitions raising Brady claims discovered after the fil-
ing of their first petition. See, e.g., In re Wogenstahl,
902 F.3d 621, 625-26 (6th Cir. 2018); Brown v. Muniz,
889 F.3d 661, 674 (9th Cir. 2018); Scott v. United
States, 890 F.3d 1239, 1243, 1248 (11th Cir. 2018);
Carter v. Kelley, No. 5:16-cv-00367, 2017 WL 4214139,
at *2, 7 (E.D. Ark. 2017). So resolution of the question
presented will have widespread impact.
II. The Court Should Also Grant Review Of The

Ninth Circuit’s Holding That § 2244(b) Has
No Impermissible Retroactive Effect On A
Petitioner Whose First Petition Predates
AEDPA.
This Court should also grant certiorari to deter-

mine whether § 2244(b) has an impermissible retro-
active effect when applied to a claim in a second-in-
time petition that would have survived the abuse-of-
the-writ standard in effect when the petitioner filed a
first, pre-AEDPA petition. Whether AEDPA’s gate-
keeping provisions apply in these circumstances has
divided the federal courts of appeals four to six. The
Third, Sixth, Tenth, and D.C. Circuits hold that, con-
sistent with the presumption against retroactivity,
AEDPA’s gatekeeping provisions do not apply when a
first petition was filed before AEDPA’s enactment and
applying AEDPA would bar consideration of a claim
20
that was reviewable at the time the first petition was

filed. The First, Second, Fifth, Seventh, and Eleventh
Circuits, however—along with the Ninth Circuit be-
low—disagree. They hold that AEDPA’s gatekeeping
provisions apply regardless of when a petitioner’s first
habeas petition was filed. This Court’s review is war-
ranted to resolve this acknowledged and intractable
split.
Review is also warranted because the Ninth Cir-

cuit’s holding contravenes this Court’s precedent. Ap-
plying AEDPA to Mr. Prince’s claim would impose
severe retroactive consequences on his past act of fil-
ing a first habeas petition. Because Congress has not
expressly provided for § 2244(b) to have retroactive ef-
fect, this Court’s holding in Landgraf v. USI Film
Prods., 511 U.S. 244 (1994), dictates that it does not
apply retroactively.
A. The courts of appeals are divided over

the retroactive effect of AEDPA’s
gatekeeping provisions.
1. Four circuits hold that AEDPA does

not apply to a second-in-time
petition that would have met the
gatekeeping standard in effect
when a petitioner filed a first, pre-
AEDPA petition.
The Sixth Circuit has declined to apply AEDPA’s

gatekeeping provisions retroactively where AEDPA
would bar consideration of a claim that would have
survived the pre-AEDPA abuse-of-the-writ standard.
In re Hanserd, 123 F.3d 922 (6th Cir. 1997). In In re
21
Hanserd, the prisoner filed, in 1996, a request for au-

thorization to file a post-AEDPA second-in-time
§ 2255 motion based on new Supreme Court prece-
dent that called into question the legality of the pris-
oner’s convictions. Id. at 924. A federal district court
had previously denied Mr. Hanserd’s pre-AEDPA
§ 2255 challenge to his sentence. Id. The court of ap-
peals observed that AEDPA’s new substantive gate-
keeping provisions would require it to deny the
application and prevent the district court from even
considering the merits of the prisoner’s claim. Id. at
930-31. At the time that Mr. Hanserd filed his first
§ 2255 motion, however, a subsequent motion based
on new Supreme Court rule would not have been pre-
cluded. Id. at 928-29.
The Sixth Circuit reasoned that, “[h]ad Hanserd

known that [under] AEDPA … his initial § 2255 mo-
tion would bar a later motion, … he might well have
waited to file that initial motion.” Id. at 931 (citing
this Court’s opinion in Landgraf). Observing that
Congress did not unambiguously provide for AEDPA’s
gatekeeping provisions to have retroactive effect, the
court reasoned that the prisoner “d[id] not need [the
court of appeals’] permission to challenge his … con-
victions,” and “h[e]ld that a federal prisoner must sat-
isfy the new requirements of 28 U.S.C. § 2255 only if
he has filed a previous § 2255 motion on or after April
24, 1996, the date AEDPA was signed into law.” Id. at
934; accord Cress v. Palmer, 484 F.3d 844, 852 (6th
Cir. 2007) (explaining that § 2244(b) does not apply
when “the second or successive habeas petition would
have survived under the pre-AEDPA ‘abuse of the
writ’ standard”).
22
The Third Circuit also concluded that AEDPA’s

substantive gatekeeping provisions do not apply ret-
roactively in In re Minarik, which examined whether
a second-in-time habeas challenge to a 1971 murder
conviction was subject to § 2244(b). 166 F.3d 591 (3d
Cir. 1999). In the Third Circuit’s view, where a peti-
tioner “had a right to prosecute a second or successive
petition prior to AEDPA’s passage, but would be de-
prived of that right by these new gatekeeping provi-
sions, we conclude that applying the AEDPA
standard would have a ‘genuine retroactive effect’ be-
cause it would attach a new and adverse consequence
to pre-AEDPA conduct—the prosecution of the origi-
nal proceeding.” Id. at 600. The court explained that
this Court’s precedents prohibit such a retroactive ap-
plication because Congress expressed no clear intent
that AEDPA apply retroactively. 3 Id. It observed that
“two other circuits”—the Sixth Circuit and D.C. Cir-
cuit—had reached the same conclusion. Id. at 601 (cit-
ing In re Hanserd, supra 21, and United States v.
Ortiz, 136 F.3d 161 (D.C. Cir. 1998), infra 23).
The Tenth Circuit, too, takes this view. The peti-

tioner in Daniels v. United States filed two pre-
AEDPA habeas petitions challenging his sentence for
a drug conviction. 254 F.3d 1180 (10th Cir. 2001). Af-
ter AEDPA’s passage, he filed a third petition, chal-
lenging his sentence under Apprendi v. New Jersey,
530 U.S. 466 (2000). 254 F.3d at 1184. The court of
3 The court concluded that AEDPA posed no constitutional
concerns in the case before it, because “Minarik would have been
precluded from filing his second habeas petition under pre-
AEDPA law.” 166 F.3d at 608.
23
appeals concluded that if § 2244(b) applied, the peti-

tion would be dismissed without consideration. Id. at
1195-99. But it explained that, consistent with the
presumption against retroactivity, § 2244(b) governed
only if it did not impose new substantive restraints on
the petitioner’s ability to bring his claim, because
Congress did not indicate that § 2244(b) should apply
retroactively to petitions that would have survived
the pre-enactment standard. Id. at 1187-88. The court
ultimately concluded that the claim would not have
survived the pre-AEDPA standard, so AEPDA had
“no retroactive effect as applied.” Id. at 1198.
The D.C. Circuit adopts this view as well. It has,

in a number of cases, recognized the impermissible
retroactive effect AEDPA would have if it were to bar
a petition that could have been considered at the time
a petitioner filed an initial petition. See, e.g., Ortiz,
136 F.3d at 165 (observing that the question
“[w]hether [AEDPA’s] amendments would be imper-
missibly retroactive in such cases” has divided the
courts of appeals); In re Fashina, 486 F.3d 1300, 1302,
(D.C. Cir. 2007); In re Cannon, No. 02-3080, 2002 WL
31426658, at *1 (D.C. Cir. Oct. 29, 2002). In each of
these cases, the court ultimately found AEDPA would
have no retroactive effect as applied, because the pe-
tition would fail under the pre-AEPDA standard.
Ortiz, 136 F.3d at 167; Fashina, 486 F.3d at 1306-07;
Cannon, 2002 WL 31426658, at *1. But the rule the
court applies is clear: AEDPA’s gatekeeping provi-
sions apply only where the second-in-time petition
would have failed when the petitioner brought his
first petition.
24
2. Six circuits hold that AEDPA’s

gatekeeping provisions apply
regardless of when a first petition
was filed.
The decision below, in contrast, holds that

§ 2244(b) can never have an impermissible retroac-
tive effect and applies regardless of when a petitioner
filed his first petition. Pet. App. 5a-6a. Relying on its
prior decision in United States v. Villa-Gonzalez, 208
F.3d 1160 (9th Cir. 2000), the court concluded that
“AEDPA’s enactment does not ‘impair’ a petitioner’s
right to file a second-in-time habeas petition.” Pet.
App. 5a. It reasoned that, even if a second-in-time pe-
tition would have survived the pre-AEDPA standard,
the “fact that the standard for bringing a second or
successive petition was different at the time of the
first habeas filing ‘does not make the application of
the new provisions to his most recent motion retroac-
tive.’” Id. (quoting Villa-Gonzalez, 208 F.3d at 1163).
The Eleventh Circuit, too, holds that “the right to

file a second or successive application and have it
judged according to pre-AEDPA law is determined by
the date of filing of the application for permission to
file a successive petition,” regardless of when the first
petition was filed. In re Magwood, 113 F.3d 1544, 152
(11th Cir. 1997); In re Medina, 109 F.3d 1556, 1561-
62 (11th Cir. 1997). It relied on this Court’s decision
in Felker, which applied § 2244(b) in a case in which
the first petition was filed prior to AEDPA’s enact-
ment. 518 U.S. at 664. The Eleventh Circuit pre-
sumed that Felker stands “for the proposition that the
AEDPA amendments relating to second or successive
25
applications do apply to cases in which the first appli-

cation was filed before the effective date of that stat-
ute.” Medina, 109 F.3d at 1561-62.
The First Circuit has also cited Felker as implic-

itly holding that AEDPA’s gatekeeping restrictions
apply regardless of the timing of the initial petition.
Pratt v. United States, 129 F.3d 54, 58 (1st Cir. 1997).
In Pratt, the First Circuit additionally relied on this
Court’s opinion in Lindh v. Murphy, which held that
AEDPA’s amendments to non-capital proceedings ap-
ply “only to such cases as were filed after the statute’s
enactment,” and not to cases already pending at the
time of enactment. 521 U.S. 320, 326-27 (1997) (em-
phasis added). The First Circuit thought Lindh meant
that “Congress intended that AEDPA apply to all sec-
tion 2255 petitions filed after its effective date.” 129
F.3d at 58 (emphasis added).
The Second and Fifth Circuits agree. They “con-

clude that the AEDPA applies to a habeas petition
filed after the AEDPA’s effective date, regardless of
when the petitioner filed his or her initial habeas pe-
tition.” Mancuso v. Herbert, 166 F.3d 97, 101 (2d Cir.
1999); see Graham v. Johnson, 168 F.3d 762, 782 (5th
Cir. 1999) (“Congress fully intended that AEDPA gov-
ern applications” following an initial, pre-AEDPA ap-
plication). Those courts, too, cited Lindh for the idea
that Congress’s intent to apply AEDPA retroactively
can be inferred from this Court’s holding that the stat-
ute applies only to cases filed after its enactment.
Graham, 168 F.3d at 781-82; Mancuso, 166 F.3d at
101; see also United States v. Orozco-Ramirez, 211
F.3d 862, 866 (5th Cir. 2000). The Fifth Circuit explic-
itly acknowledged that its view conflicts with opinions
26
of the Third, Sixth, and D.C. Circuits. 211 F.3d at 866

n.5.
The Seventh Circuit is generally in agreement. It

has rejected the position that AEDPA’s restrictions on
second-in-time § 2255 motions should apply only
when the initial motion was filed after AEDPA’s pas-
sage, noting that “[t]he Supreme Court will have to
resolve” the circuit conflict over that question. In re
Davenport, 147 F.3d 605, 607-08 (7th Cir. 1998). The
Seventh Circuit has acknowledged that Congress did
not express clear intent that AEDPA’s gatekeeping
provisions apply retroactively when an initial petition
was filed pre-AEDPA. Id. But in the Seventh Circuit’s
view, AEDPA has no impermissible retroactive effect
unless a prisoner can show that he “reasonably relied
on the previous law in holding back a ground pre-
sented in the successive motion.” Id.; see Burris v.
Parke, 95 F.3d 465 (7th Cir. 1996) (en banc). That ex-
ception is narrow: It applies only when the prisoner
“furnishe[s] evidence” that he relied on the continued
availability of pre-AEPDA law. Alexander v. United
States, 121 F.3d 312, 314 (7th Cir. 1997). If the pris-
oner cannot affirmatively prove that he withheld a
ground for relief from his first petition in reliance on
pre-AEDPA law, AEDPA’s gatekeeping provisions ap-
ply. 4
4 The First, Fifth, and Eleventh Circuits, which found clear
congressional intent to apply AEDPA retroactively, suggested

that, if Congress’s intent was not clear, they would agree with
the Seventh Circuit that a petitioner must prove actual detri-
mental reliance. See Pratt, 129 F.3d at 59; Orozco-Ramirez, 211
F.3d at 866 n.5; Medina, 109 F.3d at 1561-62.
27
***
The conflict amongst the circuits is clear and

acknowledged. See, e.g., Davenport, 147 F.3d at 607-
08; Orozco-Ramirez, 211 F.3d at 866 n.5. The disuni-
formity among the courts of appeals matters, because
the issue will continue to arise. Although years have
passed since AEDPA’s passage, new evidence not in-
frequently comes to light decades after a conviction,
appeal, and initial habeas proceedings are complete.
See, e.g., Haley, 657 F.3d at 45 (impeachment evi-
dence revealed more than thirty years after convic-
tion); Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013)
(exculpatory evidence came to light more than a dec-
ade after conviction). This case is yet another exam-
ple. Moreover, new rules of constitutional law may
undermine the basis of the petitioner’s conviction.
See, e.g., Daniels, 254 F.3d 1180. So the question
whether AEDPA’s gatekeeping provisions apply to a
successive petition that follows a pre-AEDPA petition
remains vitally relevant. See, e.g., Barnes v. Forman,
No. 16-CV-12240, 2017 WL 467410, at *2 (E.D. Mich.
Feb. 3, 2017) (citing In re Hanserd and holding that a
successive petition is not subject to § 2244(b) if it
“would have survived under the pre-AEDPA ‘abuse of
the writ’ standard”); Order, In re: George Edward
Austin, No. 13-2345 (3d Cir. Aug. 5, 2013) (citing In re
Minarik and holding that the petitioner “has made a
prima facie showing that applying AEDPA’s gate-
keeping procedures for a second or successive petition
would be unduly retroactive”).
28
B. The Ninth Circuit’s retroactivity holding

is contrary to this Court’s precedent.
As the Third, Sixth, Tenth, and D.C. Circuits have

recognized, the conclusion that AEDPA’s gatekeeping
provisions do not bar claims that would not have been
barred when the petitioner filed a first habeas peti-
tion follows directly from this Court’s precedents.
“Elementary considerations of fairness dictate

that individuals should have an opportunity to know
what the law is and to conform their conduct accord-
ingly.” Landgraf, 511 U.S. at 265. These interests,
protected under the Due Process Clause, are threat-
ened by retroactive legislation that upsets “settled ex-
pectations” by “imposing new burdens on persons
after the fact.” Id. at 265, 269-70. To avoid these con-
cerns, courts employ a “deeply rooted” presumption
against retroactivity. Id. at 265.
To determine whether a civil statute applies ret-

roactively, courts apply a two-step analysis. The first
question is whether the statute expresses Congress’s
unambiguous intent that the statute apply retrospec-
tively. Landgraf, 511 U.S. at 280. “The standard for
finding such unambiguous direction is a demanding
one. ‘Cases where this Court has found truly retroac-
tive effect adequately authorized by statute have in-
volved statutory language that was so clear that it
could sustain only one interpretation.’” St. Cyr, 533
U.S. at 316-17 (quoting Lindh, 521 U.S. at 328 n.4)
(brackets omitted). If Congress’s intent is sufficiently
clear, the inquiry ends. Id. If not, courts determine
whether the statute, as applied to the party challeng-
ing retroactivity, “would have retroactive effect, i.e.,
29
whether it would impair rights a party possessed

when he acted.” Id. Where the statute would have ret-
roactive effect, the “presumption [against retroactiv-
ity] teaches that it does not govern.” Landgraf, 511
U.S. at 265, 268.
The answer at the first step of this analysis, as

applied to AEDPA’s gatekeeping provisions, is clear:
AEDPA evinces no unambiguous congressional intent
regarding the retroactive application of its gatekeep-
ing provisions. Unambiguous means an “‘express
command,’ ‘unambiguous directive,’ and the like.”
Lindh, 521 U.S. at 325 (brackets omitted). AEDPA is
entirely silent on the retroactive application of
§ 2244(b); it contains nothing remotely approaching
the “clear evidence” of congressional intent that this
Court requires. Id.; see also, e.g., In re Minarik, 166
F.3d at 599 (“AEDPA contains no unambiguous guid-
ance regarding retroactive application of AEDPA’s
new ‘second or successive’ petition standards and pro-
cedures to cases in which the first habeas petition was
filed before AEDPA’s enactment”); Mueller v. Ange-
lone, 181 F.3d 557, 566-67 (4th Cir. 1999); In re Green,
144 F.3d 384, 386 (6th Cir. 1998); Ortiz, 136 F.3d at
165.
The courts of appeals that point to Lindh as evi-

dence of Congress’s intent to apply AEDPA retroac-
tively have it exactly backwards. See supra 25-26.
Lindh held that the plain language of AEDPA showed
Congress did not intend its non-capital provisions to
apply retroactively to cases pending at the time of en-
actment. 521 U.S. at 326-30. That is, Lindh held that
retrospective application of AEDPA to pending peti-
tions was improper even under the ordinary rules of
30
statutory construction, let alone the high bar required

to infer intent of retroactivity. Id. As to other retro-
spective applications of AEDPA, “Lindh did not fore-
close—and indeed contemplated—continuing resort
to the Landgraf analysis in order to ensure that ap-
plication of chapter 153’s new provisions is not imper-
missibly retroactive in such cases.” Mueller, 181 F.3d
at 567.
The second step of the Landgraf analysis shows

AEDPA’s gatekeeping provisions indeed would have a
genuinely retroactive effect if applied to petitions like
Mr. Prince’s. When Mr. Prince filed his first habeas
petition in 1991, a Brady claim based on newly
disclosed evidence would have been considered on the
merits. See supra 16. If § 2244(b) is read to apply
retroactively, Mr. Prince’s Brady claim will be
dismissed without consideration unless he can prove
actual innocence. 5 Because that result would attach
adverse consequences to his past act of filing an initial
petition, the “traditional presumption [against
5 Moreover, whereas pre-AEDPA law would have permitted
Mr. Prince to challenge both the guilty verdict and the special
circumstance that led to his sentence of life without parole, see,
e.g., McQueen v. Whitley, 989 F.2d 184 (5th Cir. 1993) (succes-
sive petition challenging sentence can be considered if it satisfies
cause-and-prejudice test), a post-AEDPA “second or successive”
petition based on new evidence must prove that “no reasonable
factfinder would have found the applicant guilty of the underly-
ing offense.” § 2244(b)(2)(B)(ii). To the extent that AEDPA
wholly bars Mr. Prince from challenging the special circum-
stance, in addition to and apart from the guilty verdict, it at-
taches another adverse legal consequence to his pre-AEDPA
conduct.
31
retroactivity] teaches that [§ 2244(b)] does not

govern.” Landgraf, 511 U.S. at 280. 6
The same rationale applies here as that which led

to the conclusion that AEDPA’s one-year statute of
limitations does not apply to convictions that were fi-
nal prior to AEDPA’s enactment, but rather runs from
the date of AEDPA’s enactment. Wood v. Milyard, 566
U.S. 463, 468 (2012). Applying the new statute of lim-
itations based on the date a conviction became final
would have meant that “[t]hose state prisoners whose
year had elapsed prior to AEDPA’s enactment would
be altogether barred from filing petitions that would
have been timely under the old regime.” Calderon v.
U.S. Dist. Court for the Cent. Dist. Of Cal., 128 F.3d
1283, 1287 (9th Cir.), as amended on denial of reh’g
and reh’g en banc (9th Cir. 1997), overruled in part on
other grounds by Calderon, 163 F.3d 530 (9th Cir.
1998). Because barring a prisoner from raising a pre-
viously timely petition for federal relief would impose
new, “dire consequences” on the prisoner’s act of delay
6 Felker is not to the contrary. Contra Medina, 109 F.3d at

1561-62. The claims at issue in Felker—that the state court ap-
plied the wrong standard for establishing guilt in voir dire and
jury instructions, and that forensic evidence supported an alibi—
were available at the time of the first petition. 518 U.S. at 657-
58. The claims therefore “would not have satisfied pre-Act stand-
ards for obtaining review on the merits of second or successive
claims.” Id. at 658; id. at 666 (Stevens, J., concurring). AEDPA
had no genuinely retroactive effect as applied to the claims in
Felker, so the presumption did not apply. Felker had no occasion
to examine an application of § 2244(b) that would cut off a meri-
torious claim a petitioner could have raised in a subsequent pe-
tition at the time that his first petition was filed.
32
in filing, it would have an impermissible retroactive

effect. Id.
The consequences here are equally “dire,” but

more perverse. Instead of attaching new conse-
quences to a prisoner’s “having wasted the time prior
to AEDPA’s enactment” to file a previously ripe claim,
id., AEDPA’s gatekeeping restrictions on “second or
successive” petitions would attach new consequences
to a petitioner’s having failed to assert a previously
unripe claim in a prior petition. If the former “would
be entirely unfair and a severe instance of retroactiv-
ity,” id. (quoting Reyes v. Keane, 90 F.3d 676, 679 (2d
Cir. 1996)), this Court should be even more reluctant
to apply AEDPA’s restraints retroactively here.
III. This Case Is An Ideal Vehicle To Resolve The

Questions Presented.
This case presents an ideal setting to consider the

meaning of § 2244(b) in the questions presented. The
Ninth Circuit based its decision exclusively on its an-
swer to the questions presented, so those questions
are outcome determinative here. If the Ninth Circuit
erred in its answer to those questions, its conclusion
that all Brady claims presented in second-in-time pe-
titions are “second or successive” cannot stand.
This case also presents a clean context in which

to consider the questions presented. It is undisputed,
for purposes of the questions presented, that Brady
evidence was suppressed, and that Mr. Prince could
not have reasonably known about that evidence when
he filed his first, pre-AEDPA petition. See, e.g., Pet.
App. 5a (noting Mr. Prince’s “ignorance of the Brady
33
material at the time he filed his initial federal peti-

tion.”); Resp. Ans. Br. 32, C.A. Dkt. 17 (arguing that
“all newly-discovered [Brady] claims” are “second or
successive”). The only questions at issue are the
purely legal questions (1) whether § 2244(b) applies to
previously undisclosed Brady claims that could not
have been brought in a prior petition; and (2) whether
§ 2244(b) can permissibly bar consideration of a sec-
ond-in-time petition that would not have been barred
at the time a first, pre-AEDPA petition was filed.
The Ninth Circuit’s disposition of the first ques-

tion presented—whether all second-in-time Brady
claims are “second or successive,” even when based on
newly disclosed evidence—fully incorporates the “rea-
sons set forth in [the court’s] concurrently filed pub-
lished opinion [in] Brown v. Muniz, 16-15442, [889]
F.3d [661] (9th Cir. 2018).” Pet. App. 5a. The question
was squarely raised and extensively briefed in both
cases, which were argued and decided on the same
day. That the Ninth Circuit chose to dispose of Mr.
Prince’s case in a memorandum disposition that
cross-referenced the opinion in Brown by no means
suggests the court gave insufficient consideration to
the important legal issues and practical implications
at issue in this case.
As to the second question presented, the Ninth

Circuit thought Mr. Prince’s view was foreclosed by
United States v. Villa-Gonzalez, 208 F.3d 1160, 1163-
64 (9th Cir. 2000). Pet. App. 5a. This Court frequently
grants review of memorandum dispositions to decide
legal questions resolved in prior circuit precedent.
See, e.g., Class v. United States, 138 S. Ct. 798 (2017)
(reviewing unpublished decision in United States v.
34
Class, No. 15-3015, 2016 WL 10950032 at *1 (D.C.

Cir. 2016), which relied on the D.C. Circuit’s “well-es-
tablished law”); Oil States Energy Servs., LLC v.
Greene’s Energy Grp., LLC, 138 S. Ct. 1365 (2017).
Moreover, this case exemplifies why this

Court’s intervention is necessary to resolve the circuit
conflict and prevent grave injustice. As the California
trial court found, there is a reasonable probability
that but for the State’s suppression of material, excul-
patory eyewitness evidence, a jury would not have
found Mr. Prince guilty of murder and would not have
sentenced him to life without parole. Had the State
disclosed that evidence sooner, Mr. Prince would have
been entitled to seek relief in federal court. But under
the Ninth Circuit’s ruling, the State’s egregious delay
in disclosing that evidence means that it is now im-
mune from its misconduct, and Mr. Prince is now
barred from even presenting his claim in court, unless
Mr. Prince can prove his actual innocence. This Court
should grant certiorari to clarify that this Court’s
precedents and fundamental fairness preclude that
result.
35
CONCLUSION
For the foregoing reasons, the petition should be

granted.
Respectfully submitted,
_______________________
Walter F. Brown, Jr. Robert M. Loeb
Sharon E. Frase Counsel of Record
Cynthia B. Stein ORRICK, HERRINGTON &
R. Rosie Gorn SUTCLIFFE LLP
ORRICK, HERRINGTON & 1152 15th Street, N.W.
SUTCLIFFE LLP Washington, DC 20005
405 Howard Street (202) 339-8400
San Francisco, CA rloeb@orrick.com
94105
Martin A. Sabelli
LAW OFFICES OF
MARTIN A. SABELLI
740 Noe Street
San Francisco, CA
94114
November 19, 2018

1a
APPENDIX A
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS

No. 16-55418 D.C. No. 2:15-cv-04222-R-DTB

Filed: May 8, 2018
Petitioner-Appellant,
v.
JOE A. LIZARRAGA, Warden,
Respondent-Appellee.
MEMORANDUM ∗
Appeal from the United States District Court for the

Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted October 19, 2017

San Francisco, California
∗
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
2a
Before: CALLAHAN and BEA, Circuit Judges, and

RESTANI, ∗∗ Judge.
Petitioner Terrence Prince challenges his 1982

conviction and sentence for first degree murder,
claiming that the state suppressed materially
exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963). The district court
dismissed Prince’s action for lack of jurisdiction.
Because Prince failed first to apply to this court for
leave to file a second or successive petition for habeas
relief in the district court, see 28 U.S.C. §2244(b), we
AFFIRM.
1. In 1982, a jury convicted Prince of first-degree

murder and possession of a concealed firearm by a
convicted felon. Prince was one of two or three men
who broke into a restaurant and check-cashing
business in an attempted robbery gone awry. Over the
course of a minute, Prince shot multiple times at the
restaurant owner, Bruce Horton. Horton died from
his wounds and Prince was charged with Horton’s
murder. Prince is currently serving a life sentence
without the possibility of parole.
Substantial evidence inculpated Prince: multiple

eyewitnesses positively identified him; Prince had
previously been photographed brandishing the type of
gun used to kill Horton; eyewitness descriptions of
Prince’s gun were consistent with the type of gun used
to kill Horton; Prince had a jacket at his residence
∗∗
The Honorable Jane A. Restani, Judge for the United States
Court of International Trade, sitting by designation.
3a
that eyewitnesses testified was of the type he wore to

commit the crime; Prince brought his co-conspirator
to the hospital to receive treatment for gunshot
wounds shortly after the crime; Prince appeared
flustered and paranoid at the hospital; Prince did not
wait for his co-conspirator to be treated but instead
left hurriedly; Prince never reported his
co-conspirator’s injuries to the police; and Prince’s
testimony at trial contradicted the testimony of
multiple witnesses in material ways.
2. The California Court of Appeal affirmed

Prince’s conviction and sentence and the California
Supreme Court denied review in 1984. In 1989, Prince
filed a petition for a writ of habeas corpus in federal
district court, which the court dismissed without
prejudice for failure to exhaust state-court remedies.
In 1991, Prince refiled his petition, which the district
court dismissed on the merits. The Ninth Circuit
affirmed the dismissal in 1994.
In 2007, Prince filed a second state habeas

petition. Over the course of that proceeding, the Los
Angeles County District Attorney’s Office turned over
Officer Robert Peloquin’s notes of interviews related
to the robbery-murder. The notes were the same as
the notes the State disclosed to Prince before his trial,
except that now—twenty-seven years later—they
included an additional page. The previously
undisclosed page was an account of Peloquin’s
interview with one Nelida Walsh. Walsh was
standing across the street from the restaurant at the
time of the crime when she heard gunshots. She saw
a man armed with a shotgun or rifle standing in the
doorway of the restaurant. Walsh’s description of the
4a
man conflicted with the eyewitness descriptions of

Prince. Walsh provided the same account to Detective
Charles Worthen, but Worthen did not document
Walsh’s existence or her statements in any official
reports. 1
In 2013, the state superior court granted Prince’s

habeas petition based on the Walsh statement,
concluding it was Brady material, but the California
Court of Appeal reversed in 2015, and the California
Supreme Court denied review. Later in 2015, Prince
filed a federal habeas petition in district court
asserting a Brady claim based on the Walsh evidence.
The court dismissed the case for lack of jurisdiction
because it held that the petition was second or
successive under 28 U.S.C. § 2244(b), and therefore
Prince could invoke the district court’s jurisdiction
only with the approval of this court.
1The California Superior Court determined that defense counsel

was apprised of some of the information provided by Walsh. For
example, Detective Worthen testified that the shooter wore a red
and white striped shirt—a detail that came from Walsh. In
addition, some of the information Walsh provided to police was
included in a preliminary investigation report and in Williams’
arrest report. It is unclear from the record what information was,
in fact, included in any official documents disclosed to defense
counsel at trial.
5a
3. Prince argues that his petition is not second or

successive because he filed his first federal habeas
petition before § 2244(b) was enacted as part of the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”). He reasons that applying AEDPA’s
second-or-successive bar would amount to an
impermissible retroactive application of AEDPA. The
district court rejected this argument, as do we.
We have already considered and decided the issue

that Prince raises in his petition. In United States v.
Villa-Gonzalez, 208 F.3d 1160, 1163-64 (9th Cir.
2000), we explained that applying AEDPA to second-
in-time habeas petitions, where the initial habeas
petition was filed pre-AEDPA, does not constitute
retroactive application of AEDPA, let alone
impermissible retroactive application. This is because
AEDPA’s enactment does not “impair” a petitioner’s
right to file a second-in-time habeas petition,
regardless of when he filed his initial petition. See id.
at 1163. The fact that the standard for bringing a
second or successive petition was different at the time
of the first habeas filing “does not make the
application of the new [AEDPA] provisions to his most
recent motion retroactive.” Id. Prince’s argument to
the contrary is therefore foreclosed.
Moreover, for the reasons set forth in our

concurrently filed published opinion, Brown v. Muniz,
No. 16-15442, --- F.3d ---- (9th Cir. 2018), Prince’s
petition is second or successive notwithstanding his
ignorance of the Brady material at the time he filed
his initial federal petition. Because the factual
predicate for Prince’s Brady claim—the State’s failure
to turn over the alleged exculpatory evidence—
6a
accrued before Prince filed his initial petition, AEDPA

§ 2244(b)(2)(B) governs his action. It is therefore
second or successive, meaning Prince must first apply
to this court for permission to have his petition heard
in the district court. 28 U.S.C. § 2244(b)(3). He has
not done so.
AFFIRMED.
7a
APPENDIX B
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT
GREGORY L. BROWN, No. 16-15442

D.C. No.
v. 4:14-cv-04497-YGR
W. L. MUNIZ, OPINION
Appeal from the United States District Court

for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted October 19, 2017

San Francisco, California
Filed May 8, 2018
Before: Consuelo M. Callahan and Carlos T. Bea,

Circuit Judges, and Jane A. Restani, ∗ Judge.
Opinion by Judge Callahan
∗
The Honorable Jane A. Restani, Judge for the United States
8a
SUMMARY ∗∗
Habeas Corpus
The panel (1) affirmed the district court’s

dismissal of California state prisoner Gregory
Brown’s second-in-time habeas corpus petition for
failure to obtain authorization from this court to file
a second or successive petition, and (2) denied his
application for leave to file a second or successive
petition.
Brown’s second-in-time habeas petition alleged

failure to disclose materially exculpatory evidence
under Brady v. Maryland. The panel held that Brady
claims are subject to AEDPA’s second or successive
gatekeeping requirements because the factual
predicate supporting a Brady claim—the state’s
failure to disclose exculpatory evidence before trial—
exists at the time of the first habeas petition.
Considering the exculpatory evidence

individually and together with the evidence presented
at trial, the panel held that Brown fails to make a
prima showing of actual innocence by clear and
convincing evidence. The panel therefore denied his
petition.
∗∗
This summary constitutes no part of the opinion of the court.
It has been prepared by court staff for the convenience of the
reader.
9a
COUNSEL
Grace R. DiLaura (argued), Assistant Federal Public

Defender; Steven G. Kalar, Federal Public Defender;
Office of the Federal Public Defender, San Francisco,
California; for Petitioner-Appellant.
Gregory Ott (argued), Deputy Attorney General;

Peggy S. Ruffra, Supervising Deputy Attorney
General; Jeffrey M. Laurence, Senior Assistant
Attorney General; Xavier Becerra, Attorney General;
Office of the Attorney General, San Francisco,
California; for Respondent-Appellee.
OPINION
CALLAHAN, Circuit Judge:
We must decide whether a prisoner’s second-in-

time habeas petition based on a claim under Brady
v. Maryland, 373 U.S. 83 (1963) is second or
successive for purposes of federal court review. The
State of California disclosed allegedly exculpatory
evidence in Petitioner Gregory Brown’s case after
Brown’s initial federal habeas petition was denied.
Because he did not know of the evidence at the time
of his initial petition, Brown argues he should not be
subject to the more stringent standard for seeking
habeas relief in any subsequent federal petition.
We conclude that Brown’s argument is foreclosed

by the plain text of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), binding
Supreme Court and Ninth Circuit precedent, and
Congress’ intent in enacting AEDPA. We therefore
10a
apply AEDPA’s second or successive bar to Brown’s

claim and assess whether he has made the requisite
prima facie showing of actual innocence. Because the
alleged exculpatory evidence falls short of this
standard, we affirm the district court’s dismissal of
Brown’s petition for lack of jurisdiction and deny his
habeas petition with the district court. 1
I.
Gregory Brown is currently serving a sentence of

fifty-six years-to-life for the February 7, 1995
attempted murder of Ms. Robin Williams. Brown was
convicted by a jury of one count of conspiracy to
commit murder and one count of attempted murder in
California state court on an aiding and abetting
theory. His two co-defendants, Wanda Fain and
Joseph Diggs, were also convicted.
A.
The following facts were presented to the jury at

the trial of the three co-defendants. On January 6,
1995, Williams was at the home of Brown, Fain, and
Diggs in San Francisco. Williams lived nearby, and
frequented Brown’s home. Responding to a domestic
disturbance nearby, police approached Brown’s home,
where they found Brown in the doorway holding a bag
of crack cocaine and a gun. The police arrested Brown
and Williams. That same day, Williams gave a
1 Brown’s motion for judicial notice (Dkt. No. 17) is GRANTED.

11a
statement to the police that she had seen Brown with

both the cocaine and the gun.
About a week-and-a-half later, and while Brown

was awaiting trial on drug charges stemming from his
January 6 arrest, Fain and Brown approached
Williams at a neighbor’s home. As Brown looked on,
Fain gave Williams a note that stated: “Well, well,
well, as you know playing with fire get burned.
Silence is the very best policy, bitch. P.S.: Chickens
get plucked every day, so don’t play.” Included with
the note was an explicit photo of Williams that Brown
had taken years earlier. Fain then told Williams that
Brown wanted to speak with her. Williams refused
because she was scared. Fain and Brown left the
residence.
Brown later ran into Williams on the street.

Brown told her that he would take care of her if she
did not testify against him in his drug case. After that
conversation, Williams resumed her visits to Brown’s
residence where, on at least one occasion, the two
smoked crack cocaine.
According to Williams, on the day of the

attempted murder, she traveled to and from Brown
and Fain’s residence several times, smoking crack
cocaine throughout the day. When she arrived at the
residence at 7 p.m. to see Fain, she saw that Brown
and Fain were talking (Diggs was also present), and
so left to take a walk. She returned about five minutes
later. By that time Brown had left. Fain asked
Williams if she wanted to go to a “trick house” on
Third Street so that they could prostitute themselves.
Williams agreed because she wanted money to pay for
12a
more drugs. Williams, Fain, and Diggs left the

residence at around 7:30 p.m. Fain told Williams that
Diggs was joining them to provide protection.
Williams was “very high” at the time. Brown did not
accompany them. Notably, expert testimony
established that Williams’ habitual crack cocaine use,
combined with the head injury she sustained from
being shot in the head later that evening, could have
impaired her memory of that evening’s events.
From that point on, the accounts of Williams,

Fain, and Diggs diverge. Williams testified that she,
Fain, and Diggs boarded a bus together at around
7:30 p.m. The three departed the bus at the corner of
Third and Jerrold Streets. From there, Williams
testified that she and Fain walked down the street,
laughing and talking, with Diggs following behind.
Williams’ last recollection before she was shot was a
car approaching her from behind. The police never
identified the car.
In contrast, Diggs told Officer Jeffrey Levin that

he got off the bus with Williams and then went into a
nearby Kentucky Fried Chicken on his own. He stated
that he later re-boarded a bus, leaving Williams
behind.
Fain’s account of her movements is both

internally inconsistent and contrary to Diggs’
account. Fain first told Levin that she met up with
Diggs for the first time at the Third and Jerrold Street
bus stop—i.e., after she departed the bus. But later
she said that she got on the bus with both Williams
and Diggs.
13a
The defense introduced several pieces of

exculpatory evidence. Besides the fact that no
forensics connected Fain or Diggs—let alone Brown—
to the attempted murder, the defense also introduced
impeachment evidence against Williams. The defense
showed that Williams had been involved in
altercations with others in the past, was beaten up for
committing burglary, and had informed on
perpetrators in other crimes—all of which suggested
that individuals other than the co-defendants may
have had a motive to kill Williams. The jury also
heard testimony that a man known as “Tails” had
threatened Williams at gunpoint the day before the
attempted murder. Finally, the jury heard from Angel
Stigert, who found Williams lying in the street after
she was shot. Stigert saw a car parked two blocks
away with someone standing outside, “crouching over
[and] looking toward where [Williams’] body was.”
Stigert offered a vague description of “a big black
person with [a] white T-shirt.” The mysterious
interloper, thereafter nicknamed “Suspect 1,” was
never identified. Despite the exculpatory evidence,
the jury convicted Brown, Fain, and Diggs.
B.
In 1998, the California Court of Appeal affirmed

the convictions and sentences of all three co-
defendants and the California Supreme Court denied
review. The Court of Appeal discussed the inculpatory
facts in Brown’s case. On the conspiracy charge, the
court noted that (1) Brown had a motive to murder
Williams because he was angry with her for talking to
the police and wanted to prevent her from testifying
against him in his drug case; (2) he demonstrated an
14a
intent to act on these motives through specific

actions—namely, “he directed Fain to prepare and
deliver the threatening note; he gave Fain a
suggestive photograph of Williams to attach to the
note; he accompanied Fain when the note was
delivered but waited outside and had Fain tell
Williams that he wanted to speak with her privately”;
(3) he told Williams he would protect her if she did not
testify against him in his drug case; (4) on the day of
the shooting Brown was present with Fain and Diggs
at their apartment when Williams arrived; and
(5) Brown left shortly before Fain suggested that she
and Williams prostitute themselves—an excursion
that culminated in Williams’ attempted murder. As to
the last fact, the Court of Appeal concluded that “[t]he
jury could reasonably infer that Brown left the
apartment so Williams would not become suspicious:
not because he was unaware of some hidden
agreement between Fain and Diggs.”
On the charge of aiding and abetting attempted

murder, the court found that, based on the same
evidence supporting the conspiracy conviction, the
jury could have reasonably concluded that Brown at
least intended to aid and abet Fain and Diggs in the
attempted murder, even if he did not personally
intend to kill Williams.
In 1998, after the Court of Appeal affirmed his

convictions, Brown filed a writ of habeas corpus in
federal district court, which the court denied on the
merits. The court refused to grant a Certificate of
Appealability (“COA”), as did the Ninth Circuit,
thereby concluding Brown’s first attempt at federal
habeas relief.
15a
C.
New evidence came to light more than a decade

later. Between October 2010 and May 2011, the Trial
Integrity Unit of the San Francisco District Attorney’s
(“DA”) Office issued letters to the San Francisco
County Public Defender’s Office and San Francisco
Bar Association’s Indigent Defense Administrator,
stating that three San Francisco Police Department
officers had material in their personnel files that was
previously undisclosed and which “may be subject to
disclosure under Brady v. Maryland (1963)
373 U.S. 83.” The letters implicated three officers who
were in some way related to Brown’s case:
Ms. Pamela Hockett (May 19, 2011), Sergeant
Michael Hutchings (Apr. 29, 2011), and Sergeant
Wallace Gin (Oct. 6, 2010).
The Hockett information dates back to 1987, the

Hutchings information to 1989, and the Gin
information to 1988—long before the officers’
associations with the Brown, Fain, and Diggs case.
The letters state that the DA’s office was not
conceding that any of the information was
exculpatory or that it cast doubt upon the correctness
of any convictions.
The material implicating Hockett is potential

impeachment evidence. It shows that more than a
decade before Brown’s trial, Hockett was arrested on
charges of drug possession, carrying a concealed
firearm, having a hypodermic needle, and carrying a
loaded firearm in a public place. The charges were
dismissed. Hockett did not testify at Brown’s trial or
at any preliminary hearing. She was, however, one of
16a
the officers who responded to the crime scene. She

also produced a crime scene log listing the comings
and goings of police personnel. No claim is made that
the crime scene log was inculpatory or exculpatory, in
and of itself.
The material implicating Hutchings is also

potential impeachment evidence. The information
involves a 1984 charge against Hutchings for loitering
where children congregate, resisting arrest, and
prostitution. The charges were dismissed after
diversion. Like Hockett, Hutchings also did not testify
at Brown’s trial or at any preliminary hearing. Nor
did Hutchings have any involvement in Brown’s
attempted murder case. Hutchings’ association with
Brown stemmed from his participation in Brown’s
January 1995 arrest for drug possession. In fact,
Hutchings was a defense witness at a pretrial motion
to suppress the drug evidence.
The material implicating Gin involves an

unrelated matter that predated the Williams shooting
by seven years. 2 Of the three officers, Gin was the
most closely involved in Brown’s case: unlike Hockett
and Hutchings, Gin testified at Brown’s trial. And
while Gin had no role in the investigation and did not
interview the co-defendants or the victim, he
interviewed the driver of a bus who happened upon
Williams’ body, as well as two passengers on the bus.
The information in Gin’s investigation report was
2The material itself is filed under seal and is not reproduced in

this opinion.
17a
corroborated by live witnesses, including the bus

driver, who testified at Brown’s trial.
In 2014, Brown filed a second-in-time habeas

petition in federal district court under 28 U.S.C.
§ 2254, alleging that the Hockett, Hutchings, and Gin
information was materially exculpatory Brady
evidence. The district court dismissed Brown’s
petition without prejudice for lack of jurisdiction. It
determined that the petition was second or
successive, and therefore Brown was required to
obtain authorization from the Ninth Circuit to file his
petition in order for the district court to assert
jurisdiction. The district court granted a COA on the
question of whether Brown’s petition was second or
successive, and Brown timely appealed.
II.
We review a district court’s dismissal of a habeas

petition as second or successive de novo. Wentzell
v. Neven, 674 F.3d 1124, 1126 (9th Cir. 2012). Our
review of an application to file a second or successive
habeas petition is governed by the standard set forth
in AEDPA, as is our determination of whether a
second-in-time habeas petition is second or successive
under AEDPA. See 28 U.S.C. § 2244(b)(2)–(b)(3).
A.
First-in-time habeas petitions filed in federal

court are subject to AEDPA § 2254, which provides
that
18a
[a]n application for a writ of habeas corpus on

behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was
adjudicated on the merits in State court
proceedings unless the adjudication of the
claim—
(1) resulted in a decision that was

contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based

on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d).
A different and more demanding standard

governs most second-in-time federal habeas petitions,
termed “second or successive.” While AEDPA does not
define “second or successive,” we have looked to the
text of the statute, the corpus of Supreme Court
jurisprudence interpreting § 2244(b), and the pre-
AEDPA abuse-of-the-writ doctrine to trace its
contours. It is now understood that a federal habeas
petition is second or successive if the facts underlying
the claim occurred by the time of the initial petition,
Panetti v. Quarterman, 551 U.S. 930, 945 (2007), and
if the petition challenges the same state court
judgment as the initial petition, Magwood
v. Patterson, 561 U.S. 320, 333 (2010) (explaining that
19a
a writ of habeas corpus is filed “‘on behalf of a person

in custody pursuant to the judgment of a State court.’”
(emphasis in opinion) (quoting 28 U.S.C. § 2254(b)).
Stating the second criterion in the converse, a petition
is not second or successive if it is based on an
intervening state court judgment—e.g., a new
sentencing determination—notwithstanding that the
same claim challenging a conviction (or even the new
sentence) could have been brought in the first
petition. See Magwood, 561 U.S. at 331-36. Nor is a
petition second or successive if the factual predicate
for the claim accrued only after the time of the initial
petition. United States v. Buenrostro, 638 F.3d 720,
725-26 (9th Cir. 2011) (per curiam).
If the petition is second or successive, then the

district court lacks jurisdiction and must dismiss the
petition unless and until the court of appeals grants
an application to file it. 28 U.S.C. § 2244(b)(3)(A). In
evaluating such an application, the court of appeals is
bound by § 2244(b)’s gatekeeping requirements:
A claim presented in a second or successive

habeas corpus application under section 2254
that was not presented in a prior application
shall be dismissed unless—
(A) the applicant shows that the claim

relies on a new rule of constitutional
law, made retroactive to cases on
collateral review by the Supreme
Court, that was previously
unavailable; or
20a
(B)
(i) the factual predicate for the claim

could not have been discovered
previously through the exercise of
due diligence; and
(ii) the facts underlying the claim, if

proven and viewed in light of the
evidence as a whole, would be
sufficient to establish by clear and
convincing evidence that, but for
constitutional error, no reasonable
factfinder would have found the
applicant guilty of the underlying
offense.
Id. § 2244(b)(2). 3 Thus, absent a showing of

intervening constitutional law, a second or successive
habeas petitioner must overcome two obstacles to
invoke the district court’s jurisdiction: he must
(1) show that the factual predicate for his habeas
claim reasonably could not have been discovered at
the time of his initial habeas petition, and
(2) demonstrate that the previously undiscovered
facts, if shown to be true in a habeas action, suffice to
3 The Supreme Court upheld § 2244(b) as consistent with the

Suspension Clause of the United States Constitution in Felker
v. Turpin, 518 U.S. 651, 664 (1996). The Suspension Clause
provides that “[t]he Privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.” U.S. Const., art. I, § 9, cl. 2.
21a
prove his innocence by clear and convincing evidence.

Buenrostro, 638 F.3d at 725-26. 4
B.
We conclude that Brady claims are subject to

AEDPA’s second or successive gatekeeping
requirements because the “factual predicate
[supporting a Brady claim] existed at the time of the
first habeas petition.” Gage v. Chappell, 793 F.3d
1159, 1165 (9th Cir. 2015). This conclusion is
compelled by the plain text of § 2244(b), Supreme
Court precedent, and our own case law.
1. We begin, as always, with the plain text of the

statute. Hughes Aircraft Co. v. Jacobson, 525 U.S.
432, 438 (1999). Section 2244(b)(2)(B)(i) applies the
second or successive bar to claims in which “the
factual predicate for the claim could not have been
discovered previously through the exercise of due
diligence.” Two premises necessarily underpin this
provision: the factual predicate must have existed
previously, and the defense must not have known
about it. Section 2244(b) therefore essentially defines
4 Buentrostro involved AEDPA § 2255(h), not § 2244(b).

Section 2255(h) governs second or successive habeas petitions
filed pursuant to a federal court judgment, rather than a state
court judgment, but it incorporates by reference and applies the
standard set forth in § 2244. Our circuit cites cases interpreting
both provisions interchangeably. See, e.g., Gage, 793 F.3d
at 1165 (a case applying § 2244, and relying on Buenrostro).
22a
a Brady-type event. 5 It follows ineluctably that Brady

claims are therefore subject to § 2244(b).
2. Supreme Court case law accords with this

interpretation. The Court has explained that
§ 2244(b) applies to second-in-time habeas petitions
except where the factual predicate did not exist at the
time of the initial habeas petition. See Panetti, 551
U.S. at 945.
In Panetti, the Court assessed a death row

inmate’s second-in-time habeas petition—brought
years after his initial petition was denied—in which
he argued that his death sentence was
unconstitutional under Ford v. Wainwright, 477 U.S.
399 (1986) because he was insane. Ford ruled that the
Eighth Amendment precludes the government from
executing an insane inmate. Ford, 477 U.S. at 409-10.
Because a claim ripens only at the time the factual
predicate supporting a habeas claim accrues, Panetti
explained that “Ford-based incompetency claims, as a
general matter, are not ripe until after the time has
run to file a first federal habeas petition”—and
oftentimes not until execution is imminent. Id.;
Magwood, 561 U.S. at 335 n.11. Panetti therefore
deemed the inmate’s petition not to be second or
5We note that, should exculpatory evidence be discovered by the

State after the first habeas petition is filed, and is thereafter
suppressed by the State over the course of post-conviction
proceedings, the result would be different. In that event, the
factual predicate for a Brady claim would have accrued only
after the petitioner filed his initial petition, and so the new claim
would not have been ripe at the time of the initial filing.
See Panetti, 551 U.S. at 945.
23a
successive because his Ford claim did not ripen until

just before the time of his execution. Panetti, 551 U.S.
at 945. In reaching this conclusion, the Court
considered (1) its own case law both pre- and post-
AEDPA, and (2) AEDPA’s purposes. Id. at 943-47.
First, Panetti looked to the Court’s decisions in

Slack v. McDaniel, 529 U.S. 473, 486 (2000), and
Stewart v. Martinez-Villareal, 523 U.S. 637,
644 (1998). Slack held that a pre-AEDPA petition was
not second or successive notwithstanding that it
challenged the same state court judgment, because it
merely supplemented a first-in-time petition that was
dismissed for lack of exhaustion. 6 529 U.S. at 487.
Martinez-Villareal reached the same conclusion with
regard to a Ford claim that the petitioner, unlike the
petitioner in Panetti, had raised in his first habeas
petition. 523 U.S. at 644. The district court dismissed
the first petition, however, because it was unripe at
the time. Id. In discussing the rationale behind
Martinez-Villareal, the Court in Panetti explained the
unusual circumstance presented by Ford claims:
While the later filing “may have been the

second time that [the prisoner] had asked the
federal courts to provide relief on his Ford
claim,” the Court declined to accept that there
were, as a result, “two separate applications,
[with] the second … necessarily subject to
§ 2244(b).” The Court instead held that, in
light of the particular circumstances
6The Court implied that it would have reached the same result
under AEDPA. 529 U.S. at 486.
24a
presented by a Ford claim, it would treat the

two filings as a single application. The
petitioner “was entitled to an adjudication of
all of the claims presented in his earlier,
undoubtedly reviewable, application for
federal habeas relief.”
551 U.S. at 944-45 (quoting Martinez-Villareal,

523 U.S. at 643). Rather than limiting Martinez-
Villareal to exempting only those Ford claims that
were actually brought as (unripe) claims in an initial
petition, Panetti couched Martinez-Villareal in a
broader doctrinal context. The Court concluded that
“Congress did not intend the provisions of AEDPA
addressing ‘second or successive’ petitions to govern a
filing in the unusual posture presented here: a § 2254
application raising a Ford-based incompetency claim
filed as soon as that claim is ripe.” Id. at 945.
Panetti fortified its conclusion by considering

Congress’ intent under AEDPA, and the “practical
effects” of its holding. Id. The Court explained that
[t]he statute’s design is to “further the

principles of comity, finality, and federalism.”
Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.
Ct. 1029, 154 L.Ed.2d 931 (2003) (internal
quotation marks omitted). Cf. Day v.
McDonough, 547 U.S. 198, 205-206, 126 S. Ct.
1675, 164 L.Ed.2d 376 (2006) (“The AEDPA
statute of limitation promotes judicial
efficiency and conservation of judicial
resources, safeguards the accuracy of state
court judgments by requiring resolution of
constitutional questions while the record is
25a
fresh, and lends finality to state court

judgments within a reasonable time”
(internal quotation marks omitted)).
Id. The Court determined that requiring a

petitioner to file an unripe Ford claim to preserve the
right to full habeas review of that claim—a la
Martinez-Villareal—would frustrate Congress’ goals:
An empty formality requiring prisoners to file

unripe Ford claims neither respects the
limited legal resources available to the States
nor encourages the exhaustion of state
remedies …. Instructing prisoners to file
premature claims, particularly when many of
these claims will not be colorable even at a
later date, does not conserve judicial
resources, “reduc[e] piecemeal litigation,” or
“streamlin[e] federal habeas proceedings.”
Burton v. Stewart, 549 U.S. 147, 154, 127 S.
Ct. 793, 797, 166 L.Ed.2d 628 (2007) (per
curiam) (internal quotation marks omitted).
AEDPA’s concern for finality, moreover, is not
implicated, for under none of the possible
approaches would federal courts be able to
resolve a prisoner’s Ford claim before
execution is imminent. See Martinez-
Villareal, supra, at 644-645 (acknowledging
that the District Court was unable to resolve
the prisoner’s incompetency claim at the time
of his initial habeas filing).
Id. at 946. The Court ultimately held that

petitions “that would require unripe (and, often,
factually unsupported) claims to be raised as a mere
26a
formality, to the benefit of no party,” are not second

or successive under AEDPA. Id. at 947. Thus, “the
statutory bar on ‘second or successive’ applications
does not apply to a Ford claim brought in an
application filed when the claim is first ripe.” 7 Id.
7 Panetti marked the Supreme Court’s first foray into the area of
unripe claims filed after a habeas petition has been decided, but
it was not the first court to venture into the patch. Over the span
of nearly two decades, several lower courts have recognized that
unripe claims—albeit outside the Ford context—are not subject
to the second or successive bar when properly raised in a
subsequent federal habeas petition. See, e.g., Hill v. Alaska, 297
F.3d 895, 898-99 (9th Cir. 2002) (challenge to release date based
on post-sentencing parole determination was not second or
successive because the factual predicate—calculation of the
release date—occurred after petitioner filed his initial petition);
Medberry v. Crosby, 351 F.3d 1049, 1062 (11th Cir. 2003)
(challenge to prison disciplinary proceeding was not second or
successive because it “could not have been raised in an earlier
petition” challenging petitioner’s conviction or sentence); James
v. Walsh, 308 F.3d 162, 168 (2d Cir. 2002) (challenge to
calculation of release date was not second or successive because
it was based on facts that “did not exist” at the time of the initial
habeas petition); Crouch v. Norris, 251 F.3d 720, 725 (8th Cir.
2001) (claim stemming from a refusal to grant parole was not
second or successive because the facts underlying the claim did
not exist at the time of the initial habeas petition); In re Cain,
137 F.3d 234, 235-36 (5th Cir. 1998) (challenge to prison
disciplinary decision was not second or successive because it
occurred after petitioner filed his initial habeas petition); Walker
v. Roth, 133 F.3d 454, 455 (7th Cir. 1997) (per curiam) (petition
was not second or successive because it “challenge[d] the
constitutionality of a proceeding which obviously occurred after
[petitioner] filed, and obtained relief, in his first habeas
petition”); United States v. Scott, 124 F.3d 1328-29, 1330 (10th
Cir. 1997) (petition was not second or successive where
ineffective assistance of appellate counsel claim raised in the
petition did not exist at the time of petitioner’s initial petition);
27a
Panetti’s limited exception to § 2244(b) comports

with the plain text of § 2244(b)(2)(B)(i): whereas a
Brady claim involves a “factual predicate” that
existed but could previously “not have been
discovered,” an unripe claim involves no previously
existing “factual predicate” at all.
Section 2244(b)(2)(B)(i) simply does not contemplate
such a scenario.
Treating unripe claims as second or successive is

also inconsistent with AEDPA’s purposes of
promoting comity, finality, federalism, and judicial
efficiency, as Panetti explained. See Panetti, 551 U.S.
at 946-47. Doing the same for Brady claims, by
contrast, serves AEDPA’s goals. It gives due regard to
States’ administration of their own criminal justice
systems by limiting collateral attacks on state court
judgments to those where “extreme malfunctions in
the state criminal justice systems” occurred.
Harrington v. Richter, 562 U.S. 86, 102-03 (2011)
(emphasis added). In the same vein, by recognizing
only those Brady claims that show by clear and
convincing evidence a petitioner’s actual innocence, a
court of appeals acts consistent with Congress’
purpose of keeping the federal courts’ focus on
ensuring the integrity of a verdict, rather than
second-guessing state court judgments. See id.; see
also Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015)
(habeas relief is available only where the state court’s
cf. Benchoff v. Colleran, 404 F.3d 812, 817-18 (3d Cir. 2005)
(because challenged parole determination occurred before
petitioner filed his first habeas petition, his subsequent
challenge was second or successive).
28a
decision was so unreasonable that there is no

“possibility for fairminded disagreement” (internal
quotation marks omitted)).
In sum, having reviewed § 2244(b)’s plain text

and the Supreme Court’s narrowly circumscribed
exception for unripe claims, we decline to read into
the Court’s decisions an additional and qualitatively
different exception for Brady claims.
3. Finally, our own case law accords with this

interpretation. Indeed, we explained this very
distinction in Buenrostro, albeit in the context of an
ineffective assistance of counsel (“IAC”) claim.
638 F.3d at 725-26. Buenrostro involved a petitioner
serving a life sentence for federal drug crimes. Id. at
721. After the district court denied his initial petition,
Buenrostro discovered that his trial attorney had
rejected a plea deal that would have limited his
sentence to fourteen years. Id. Buenrostro argued
that his attorney’s rejection of the deal amounted to
deficient performance, and that his case should be
reopened under Federal Rule of Civil Procedure 60(b).
Id.
The district court construed Buenrostro’s motion

as second or successive under § 2255—the federal
court analog to § 2244. Id. A panel of this court agreed
and, applying § 2255’s “actual innocence standard,”
denied his application to file his petition in district
court. Id. at 725-26. Buenrostro then went on to
distinguish Panetti. It explained that Panetti is
limited to the narrow circumstance of a claim that
does not ripen until after an initial habeas petition is
decided. Id. at 725. Buenrostro’s IAC claim, by
29a
contrast, was ripe at the time of his first habeas

petition: the alleged constitutional error had already
occurred, and the district court would have had
jurisdiction to rule on it. See id. at 725-26. Buenrostro
just didn’t know about it. The court held that § 2255
addresses this precise scenario, and explained that
“the words of § 2255(h) indicate Congress’ clear intent
to prohibit us from certifying second-in-time claims,
ripe at the time of a prisoner’s first § 2255 proceeding
but not discovered until afterward,” unless the
petitioner can satisfy § 2255’s criteria. Id.
Our subsequent decision in Gage also concerned

facts discovered after trial but before the filing of an
initial habeas petition. But in Gage, those facts
supported a Brady rather than an IAC claim. Gage
was serving a 70-year sentence for sexually
assaulting his daughter. Gage, 793 F.3d at 1163. After
he was convicted but before he was sentenced, the
trial judge ordered the state to turn over the victim’s
medical and psychiatric records for in camera review.
Id. While Gage was not permitted to view the records,
the trial court disclosed some of their contents—
namely, that the victim’s mother—Gage’s ex-wife—
had described her daughter as a “pathological liar.”
Id. Armed with this exculpatory evidence, the trial
court “concluded that the testimony of the victim and
her mother [implicating Gage] was not credible,
leaving insufficient evidence to support the jury’s
verdict.” Id. The court thereby vacated Gage’s
conviction. Id.
After the California Court of Appeal reinstated

the conviction and sentenced Gage to seventy years,
Gage ran his appeals up through the state courts,
30a
arguing that the State’s failure to turn over the

victim’s medical records violated Brady. Id. The state
courts rejected Gage’s appeals. Id. Gage eventually
filed a pro se habeas petition in federal district court.
Id. at 1164. Curiously, Gage did not press his Brady
claim in the federal proceeding. Id. at 1163-64. The
district court denied the petition, which a panel of this
court upheld. Id. at 1164.
Years later, Gage sought this court’s permission

to file a second-in-time habeas petition to assert his
Brady claim. Id. A panel of this court rejected Gage’s
argument that the petition fell under the Panetti
exception. Id. at 1165. The court held that Buenrostro
“foreclose[d] Gage’s argument,” reasoning that,
unlike the petitioner’s Ford claim in Panetti, the
factual predicate for Gage’s Brady claim “existed at
the time of [Gage’s] first habeas petition.” Id. More
specifically, Gage determined that
[t]he factual predicate for Gage’s Brady claim

developed, at the latest, when the state trial
judge commented on the contents of [the
victim’s] medical records …. This is not a case
where the basis for the would-be petitioner’s
second petition did not exist or was unripe
when the first petition was filed.
Id. at 1165.
Critically, the court found only that the factual

predicate for Gage’s Brady claim accrued “at the
latest[] when the state trial judge commented on the
contents of [the victim’s] medical records.”
Id. (emphasis added). The court left open the question
31a
of when a factual predicate actually accrues for

purposes of a Brady claim. That question is squarely
presented here because the alleged Brady material
was completely unknown to Brown and his counsel at
the time of trial. Whereas Gage had knowledge of the
Brady evidence when he filed his initial habeas
petition, Brown was completely in the dark when he
filed his own.
Today, we answer the question left open by Gage.

We conclude that a factual predicate accrues at the
time the constitutional claim ripens—i.e., when the
constitutional violation occurs. See Panetti, 551 U.S.
at 945; Magwood, 561 U.S. at 335 n.11. In the case of
a Brady claim, the violation occurs at the time the
State should have disclosed the exculpatory
evidence—i.e., before trial. 8 If the factual predicate
accrues before a petitioner brings an initial federal
habeas petition, then any subsequent federal petition
raising a claim based on that factual predicate is
second or successive and is governed by § 2244(b). Our
conclusion is compelled by the plain text of § 2244(b),
the Supreme Court’s decisions in Panetti and
8To the extent Gage suggested that the factual predicate accrues
at the time the petitioner learns of it, that case runs afoul of the
distinction—made clear in Buenrostro—between unripe claims
and unknown claims. At any rate, because Gage did not hold that
the requisite factual predicate there did not accrue until the trial
judge disclosed the alleged Brady material, we need not and do
not credit that court’s dicta and instead follow Buenrostro’s clear
holding to the contrary.
32a
Magwood, and our own subsequent decision in

Buenrostro. 9
C.
We observe that our decision in United States v.

Lopez, 577 F.3d 1053, 1064 (9th Cir. 2009) is in some
tension with our subsequent decisions in Buenrostro,
Gage, and our holding today. But Lopez is not
controlling because it expressly declined to reach the
question we answer here. Lopez held that the Brady
claim there was, in fact, second or successive. Id.
However, it rested its decision on a finding that the
evidence underlying the claim was not material. Id.
The court declined to resolve whether “all second-in-
time Brady claims”—i.e., material and immaterial
claims alike—“must satisfy AEDPA’s gatekeeping
requirements.” Id.; see King v. Trujillo, 638 F.3d 726,
729 (9th Cir. 2011) (per curiam) (recognizing Lopez for
the proposition that a Brady claim in a second-in-time
habeas petition “may not be subject to the ‘clear and
convincing standard,’ provided the newly discovered
9 Our determination aligns the Ninth Circuit with our brethren

in the Fourth, Tenth, and Eleventh Circuits. In re Pickard, 681
F.3d 1201, 1205 (10th Cir. 2012) (Brady/Giglio claims were
“certainly second-or-successive … because they assert[ed] a
basis for relief from the underlying convictions”); Tompkins v.
Sec’y, Dep’t of Corr., 557 F.3d 1257, 1259-60 (11th Cir. 2009) (per
curiam) (holding that all second-in-time habeas petitions based
on Brady claims are second or successive); Evans v. Smith, 220
F.3d 306, 323 (4th Cir. 2000) (“the standards that Congress has
established for the filing of second or successive petitions
account for precisely the type of situation[—Brady claims—
]Evans alleges”).
33a
evidence supporting the claim was ‘material’ under

Brady” (emphasis in original)).
We also observe that Lopez’s distinction between

material and immaterial Brady claims derives from
the pre-AEDPA abuse-of-the-writ doctrine. Lopez, 577
F.3d at 1064. While AEDPA’s provisions are inspired
by and borrow heavily from that judicially-developed
rule, see Slack, 529 U.S. at 486, we are bound by
AEDPA itself, not the judicial standard it superseded.
AEDPA § 2244(b) makes no distinction based on the
materiality of predicate facts. Its only concern is with
the existence of those facts at the time of the initial
habeas petition. 10
D.
Turning to the matter before us, we first consider

Brown’s argument that his Brady claims had not
ripened at the time of his first habeas petition. Brown
seeks a rule that Brady claims only ripen when a
10Brown’s reliance on Douglas v. Workman, 560 F.3d 1156 (10th

Cir. 2009), is unavailing. First, it is non-binding extra-circuit
precedent. Second, Douglas acknowledged that the case was
“unusual” and even “unique” for several reasons that set it apart
from the typical second-in- time petition based on a Brady claim.
Id. at 1187, 1189. Among other things, Douglas’ first habeas
petition was pending when he discovered the Brady evidence. Id.
at 1190. Because the “first habeas petition had never been finally
resolved,” the Tenth Circuit deemed the second petition not to be
second or successive. Id. Moreover, in a subsequent decision, the
Tenth Circuit made clear that it was aligned with its sister
circuits in deciding that Brady claims are, as a general rule,
subject to AEDPA’s second or successive bar. In re Pickard, 681
F.3d 1201, 1205 (10th Cir. 2012).
34a
petitioner is on notice of the Brady evidence. He relies

heavily on our decision in Lopez but, as discussed,
that case is inapposite. Brown also notes that in
Magwood, seven justices concluded that a petition is
not second or successive if the petitioner had no “full
and fair opportunity to raise” the claim in the first
petition. In Magwood, those seven justices agreed
that, because Congress did not define “second or
successive,” pre-AEDPA abuse-of-the-writ principles
are relevant to determining whether a second-in-time
habeas petition may be maintained. Under the abuse-
of-the-writ doctrine, “to determine whether an
application is ‘second or successive,’ a court must look
to the substance of the claim the application raises
and decide whether the petitioner had a full and fair
opportunity to raise the claim in the prior
application.” Magwood, 561 U.S. at 346 (Kennedy, J.,
dissenting). Because Brown did not know of the Brady
material at the time of his first petition, he argues
that he did not have a “full and fair opportunity to
raise” his claim at that time.
Brown misreads Magwood. As Justice Kennedy

made clear in his dissent—which was joined by three
other justices and commanded a plurality of the
Court—a petitioner “had no fair opportunity to raise
the claim in the prior application” if “[1] the claim was
not yet ripe at the time of the first petition, or
[2] where the alleged violation occurred only after the
denial of the first petition.” Id. at 345-46 (Kennedy, J.,
dissenting) (internal citation omitted).
Brown fails to satisfy either prong of Justice

Kennedy’s disjunctive test. First, the alleged Brady
violations occurred before Brown sought federal
35a
habeas review for the first time, and so the “alleged

violation” did not occur “after the denial of [his] first
petition.” Second, contrary to his legal contention,
Brown’s Brady claim did not ripen only when he
learned of the alleged Brady material. As discussed,
whether a claim is ripe under AEDPA turns on
whether the factual predicate existed, not whether
the petitioner knew it existed at the time of his initial
habeas petition. Buenrostro, 638 F.3d at 725
(emphasis in original).
Consistent with the decisions in Panetti,

Magwood, and Buenrostro, we hold that Brown’s
Brady claim was ripe at the time of his first habeas
petition because the alleged constitutional violation—
failure to turn over the Hockett, Hutchings, and Gin
information—occurred before Brown’s trial even
began. Thus, § 2244(b) applies to Brown’s claim and
he is entitled to file a second or successive habeas
petition only if he satisfies that provision’s
gatekeeping requirements.
III.
To make it through the § 2244(b) “gateway,”

Brown must make a prima facie showing that (1) the
purported Brady material “could not have been
discovered previously through the exercise of due
diligence,” and (2) that the material—if proven on
habeas review—establishes by “clear and convincing
evidence that” Brown is actually innocent. 28 U.S.C.
§ 2244(b)(2)(B), (b)(3)(C); Lopez, 577 F.3d at 1064;
Gage, 793 F.3d at 1166. The state concedes that
Brown makes a prima facie showing as to factor (1).
Because we agree with the State that Brown fails to
36a
make the requisite showing as to factor (2), we

address only that factor.
A.
Brown faces an uphill climb straight out of the

gate. He must show that “the facts underlying the
claim, if proven and viewed in light of the evidence as
a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error,
no reasonable factfinder would have found the
applicant guilty of the underlying offense.” 28 U.S.C.
§ 2244(b)(2)(B)(ii) (emphasis added); Lopez, 577 F.3d
at 1064; see also Cooper v. Woodford, 358 F.3d 1117,
1119 (9th Cir. 2004) (en banc). In other words, Brown
must do more than simply satisfy the standard for
prevailing on the underlying constitutional claim. For
example, to prevail on a straight Brady claim, a
petitioner must show that the state “suppressed
[] evidence, either willfully or inadvertently,” that is
“favorable to the accused, either because it is
exculpatory, or because it is impeaching,” and which
is “material.” Turner v. United States, 137 S. Ct. 1885,
1893 (2017). “Evidence is material within the
meaning of Brady when there is a reasonable
probability that, had the evidence been disclosed, the
result of the proceeding would have been different.”
Id. (internal quotation marks omitted); Strickler v.
Greene, 527 U.S. 263, 280 (1999) (same). Section
2244(b)(2), however, elevates the “reasonable
probability” standard for Brady materiality to a more
demanding “clear and convincing evidence” standard.
Lopez, 577 F.3d at 1064. Thus, our charge is to decide
whether the petitioner’s “claim (1) is based on newly
discovered evidence and [also] (2) establishes that he
37a
is actually innocent of the crimes alleged,” King,

638 F.3d at 730 (emphasis added)—not whether the
petitioner merely sustained a prejudicial
constitutional injury. We have observed that “[f]ew
applications to file second or successive petitions …
survive [§ 2244(b)’s] substantive and procedural
barriers.” Id. (internal citation omitted).
B.
Brown argues that the Hockett, Hutchings, and

Gin information would have “played a significant role
in the case” because of the weak evidence against him.
But Brown fails to show how the three officers’
participation in his case—which was tangential at
best—would have tipped the scales in any juror’s
mind.
The record reflects that Hockett’s involvement in

Brown’s trial had no nexus to any evidence
inculpating Brown. She was one of the first
responders at the crime scene and produced a log
listing the comings and goings of police officers. She
offered no testimony and Brown makes no assertion
that her crime scene log omitted exculpatory
evidence. Moreover, even if Brown could have
impeached Hockett with the later-disclosed
information, that would not have affected the case at
all because nothing in the crime scene log, nor any
actions taken by Hockett, inculpated Brown. Thus,
the Hockett information does not point to Brown’s
actual innocence.
We reach the same result regarding the

Hutchings material. Like Hockett, Hutchings did not
38a
testify at Brown’s trial. In fact, Hutchings was not

even involved in the attempted murder investigation.
Instead, he was a defense witness in Brown’s case for
drug possession. Brown inexplicably argues that
impeachment evidence against his own witness in a
separate case would have “weakened the credibility of
the [attempted murder] investigation.”
Further, the purported Brady material—

information that Hutchings was charged more than
ten years earlier with loitering where children
congregate, resisting arrest, and prostitution—is not
material because it bears no relation to his credibility
in Brown’s case. And, as with Hockett, even if Brown
could have impeached Hutchings with the
information, that would not have reasonably affected
the outcome because Hutchings gathered no evidence
inculpating Brown.
Gin had a more substantive role in the attempted

murder case, but, again, any impeachment evidence
is not material. While Gin testified at Brown’s trial
and produced a report, his crime scene interviews
with the bus driver and two bus passengers were
corroborated by live witness testimony. Moreover,
Gin was not involved in the investigation beyond his
presence at the crime scene for approximately twenty-
to-forty minutes, he did not uncover any exculpatory
or inculpatory evidence, and he had no reason to lie
about his witness interviews.
In sum, considering the exculpatory evidence

individually and together with the evidence presented
at trial, we hold that Brown fails to make a prima
39a
facie showing of actual innocence by clear and

convincing evidence.
IV.
We appreciate that our application of AEDPA’s

second or successive bar to Brady claims may seem
harsh. Why should courts saddle petitioners with a
stringent standard of proof that is a function of the
government’s own neglect, or worse, malfeasance?
The answer is that such is the framework Congress
established. That a petitioner’s burden is higher
under these circumstances may seem inequitable, but
that is a policy, not a legal, objection. Through
§ 2244(b), Congress made the legislative choice to
prioritize state-federal comity and the finality of
criminal proceedings over affording petitioners
multiple opportunities to invoke the federal courts’
jurisdiction under the same standard of review—a
choice that the Supreme Court has definitively held
to be consistent with the Suspension Clause. Felker v.
Turpin, 518 U.S. 651, 664 (1996) (“The added
restrictions which [AEDPA] places on second habeas
petitions are well within the compass of th[e]
evolutionary process [defining the parameters of the
writ of habeas corpus], and we hold that they do not
amount to a ‘suspension’ of the writ contrary to
Article I, § 9.”). Indeed, the Suspension Clause
establishes no particular review standard for habeas
petitions; it does, however, guarantee access to the
federal courts to press a habeas claim. Section 2244(b)
preserves this bedrock constitutional right by
requiring the court of appeals to grant an application
for habeas review when clear and convincing evidence
of actual innocence so requires.
40a
CONCLUSION
Petitioner Gregory Brown’s habeas petition

alleging Brady violations is second or successive
because the factual predicate underlying his
constitutional claim existed at the time he filed his
first-in-time habeas petition. Under a second or
successive analysis, his claim fails because the
underlying facts do not point to—let alone show by
clear and convincing evidence—his actual innocence.
The district court’s dismissal of Brown’s habeas
petition for failure to obtain authorization from this
court to file a second or successive petition is therefore
AFFIRMED, and Brown’s application for leave to file
a second or successive habeas petition is DENIED.
41a
APPENDIX C
UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
Case No. CV 15-04222-R (DTB)
Petitioner,
vs.
Respondent.
ORDER ACCEPTING FINDINGS,

CONCLUSIONS AND RECOMMENDATIONS
OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has

reviewed the Petition, all the records and files herein,
and the Report and Recommendation of the United
States Magistrate Judge. Objections to the Report
and Recommendation have been filed herein. Having
made a de novo determination of those portions of the
Report and Recommendation to which objections have
been made, the Court concurs with and accepts the
findings, conclusions and recommendations of the
Magistrate Judge. IT THEREFORE IS ORDERED
that respondent’s Motion to Dismiss is granted and
that Judgment be entered dismissing this action
without prejudice.
42c
Dated: March 9, 2016 /s/ Manuel L. Real

MANUEL L. REAL
UNITED STATES
DISTRICT JUDGE
43a
APPENDIX D
UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
Case No. CV 15-04222-R (DTB)
Petitioner,
vs.
Respondent.
REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to

the Honorable Manuel L. Real, United States District
Judge, pursuant to the provisions of 28 U.S.C. § 636
and General Order 05-07 of the United States District
Court for the Central District of California.
PROCEEDINGS
On June 4, 2015, petitioner, through counsel, filed

a Petition for Writ of Habeas Corpus by a Person in
State Custody (“Pet.”) herein, together with a
supporting Memorandum of Points and Authorities
(“Pet. Mem.”) and exhibits attached to the Petition
(“Pet. Exh.”) and the Memorandum of Points and
Authorities (“Pet. Mem. Exh.”). On June 6, 2015, the
Court issued its Order Requiring Response to
44a
Petition. After one extension of time, on August 25,

2015, respondent filed an “Application for Leave to
File Motion to Vacate Order Requiring Response”
(“Application”), together with a “Motion to Vacate
Order Requiring Response” (“Motion to Vacate”), on
the grounds that petitioner failed to comply with 28
U.S.C. § 2244(b) and the Petition is unverified. 1
Petitioner opposed this Application. On August 31,
2015, the Court denied the Application, and instead
construed respondent’s Motion to Vacate as a Motion
to Dismiss Petition for Writ of Habeas Corpus
(“Motion”). Petitioner filed his Opposition (“Opp.”) to
the Motion on September 21, 2015.
Thus, this matter is now ready for decision. For

the reasons discussed hereafter, the Court
recommends that the Motion be granted and that the
Petition be dismissed for lack of jurisdiction.
BACKGROUND
A. Procedural History
On June 24, 1982, a Los Angeles County Superior

Court jury found petitioner guilty of first degree
murder and possession of a concealable firearm by an
ex-felon. The jury found true the allegations that the
murder was committed during a robbery and that
petitioner used a firearm during the commission of
the robbery. On September 14, 1982, the trial court
sentenced petitioner to life without the possibility of
1Respondent requested two extensions of time, one of which was

granted in part, and another of which was denied for failure to
show good cause.
45a
parole for the murder, plus a consecutive term of eight

months on the possession charge. (Pet. at 2; Pet.
Exh. 1.)
Petitioner appealed his conviction and sentence to

the California Court of Appeal. In an unpublished
decision issued on January 13, 1984, the Court of
Appeal modified petitioner’s sentence to provide that
the eight-month term would be served first, followed
by the life sentence, and affirmed the judgment in all
other respects. (Pet. Exh. 1.) Petitioner’s ensuing
Petition for Review to the California Supreme Court
was denied on March 14, 1984. (Pet. at 3.)
On January 9, 1987, petitioner collaterally

challenged his conviction in state court, by filing a
habeas petition in the California Court of Appeal,
which was denied on February 3, 1987. (Pet. Exh. 3;
Respondent’s Notice of Lodging [“Lodgment”] No. 1.)
Petitioner then filed a habeas petition in the
California Supreme Court on February 13, 1987,
which was denied on March 26, 1987. (Pet. Exh. 4;
Lodgment No. 2.)
On March 31, 1989, petitioner filed a habeas

petition in the United States District Court (Case No.
CV 89-1904-MRP (GHK)), challenging his 1982
conviction. On April 6, 1989, the petition was denied
and dismissed without prejudice for failure to exhaust
state court remedies. (Pet. Exh. 5.)
On February 13, 1990, petitioner returned to

state court and filed a habeas petition in the
California Supreme Court, which was denied on
March 14, 1990. (Lodgment No. 3.) On March 12,
46a
1991, petitioner filed another habeas petition in the

United States District Court (Case No. CV 91-1351-R
(GHK)), challenging his 1982 conviction and raising
claims unrelated to the claim asserted in the Petition
herein. (Pet. Exh. 6.) On June 11, 1993, the Court
denied the petition and dismissed the action on the
merits. (Pet. Exh. 7.) On June 9, 1994, the Ninth
Circuit Court of Appeals affirmed the Court’s denial
of the habeas petition. (Pet. Exh. 8.)
Thereafter, on April 26, 2007, petitioner filed

another habeas petition in the United States District
Court (Case No. CV 07-2757-R (JWJ)), challenging his
1982 conviction. (Pet. Exh. 9.) On July 25, 2007, the
petition was denied and dismissed without prejudice
for failure to exhaust state court remedies. (Pet. Exhs.
10, 11.)
Meanwhile, on March 27, 2007, petitioner filed a

habeas petition in the Los Angeles County Superior
Court. (Pet. at 4.) Petitioner filed an amended petition
on February 5, 2008. (Pet. Mem. at 6 n.7; Pet. Mem.
Exh. A at 2.) In June 2009, the Superior Court ordered
an evidentiary hearing. (Pet. Mem. C at 18.)
On December 7, 2009, petitioner filed a petition

for writ of mandate in the California Court of Appeal,
which was denied on December 15, 2009. (Lodgment
No. 4.) On or about July 16, 2010, petitioner filed a
third-amended petition in the Los Angeles Superior
Court, raising the same claim asserted in the Petition
herein. (See Pet. Mem. at 6-7.) The Superior Court
held an evidentiary hearing, and on March 14, 2013,
the Superior Court granted the habeas petition on the
ground that the State violated petitioner’s due
47a
process rights by concealing a statement by Nelida

Walsh (“Walsh”). (Pet. Mem. Exh. A.) The People
appealed and on August 26, 2014, the California
Court of Appeal reversed the Superior Court’s order
granting the petition and remanded to the Superior
Court with directions to enter a new order denying
the petition. (Pet. Mem. Exh. C.) 2 On October 6, 2014,
petitioner filed a Petition for Review in the California
Supreme Court, which was denied on November 12,
2014. (Pet. Mem. Exhs. D, E.)
As explained, the instant Petition was filed on

June 4, 2015.
B. Factual background
Petitioner’s conviction stems from the murder of

Bruce Horton (“Horton”), which occurred during an
attempted robbery of Horton’s check-cashing business
on February 16, 1980. (Pet. Exh. 1 at 2; Pet. Mem. at
1.) Two witnesses were present during the robbery
and identified petitioner as one of the perpetrators:
Carol Croce (“Croce”), who owned the hamburger
stand in which the check-cashing business was
located, and Keith Zarin (“Zarin”) (who previously
went by Keith Sarazinski), who worked as a busboy
at the hamburger stand. (Pet. Exh. 1 at 2-3; Pet. Mem.
at 8, 12-13.) These witnesses testified at trial that
petitioner and another man broke into and tried to rob
Horton’s check-cashing business. (Pet. Mem. at 1.)
2Both the Superior Court’s and Court of Appeal’s decisions also

addressed a habeas petition filed by Edwards Charles Williams,
who was separately tried and convicted for the same murder and
attempted robbery.
48a
They further testified that petitioner entered the

hamburger stand holding a gun and Croce testified
that petitioner shot Horton while Horton was
struggling with the second robber, Williams. (Pet.
Exh. 1 at 3; Pet. Mem. at 1, 12-13, 15-18; Pet. Mem.
Exh. C at 3.) 3
Petitioner has filed the instant Petition because

he claims that the prosecution withheld exculpatory
evidence relating to another eyewitness, Walsh.
Petitioner alleges that, until 2010, the State failed to
disclose the existence of this other witness, who had
spoken to the police twice on the day of the shooting.
Walsh, who was across the street from the hamburger
stand, told the police that, immediately after hearing
shots fired, she looked across the street and saw “a
large man—who did not fit [petitioner’s] height and
weight—standing at the entrance to Mr. Horton’s
business, and pointing a weapon inside the business.”
(Pet. Mem. at 1-2, 10-11.) According to petitioner, this
information would have offered him a viable and
persuasive defense because (1) this information
would have impeached the testimony of Croce and
Zarin and (2) Walsh’s observations were explained
and corroborated by the location of two spent .45
caliber casings found at the scene supporting a theory
that the shooter was at the doorway of the business.
(Pet. Mem. at 2-3.)
3 Another witness, John McCarty, who worked in a realty

company near Horton’s business, testified that, after hearing the
gunshots, he looked out the window and saw two men getting
into a car. (Pet. Mem. at 18.)
49a
PETITIONER’S CLAIM HEREIN
The State suppressed favorable, material

evidence in violation of the Fifth and Fourteenth
Amendments and Brady v. Maryland, 373 U.S. 83, 83
S. Ct. 1194, 10 L. Ed. 2d 215 (1963). (Pet. at 5.)
DISCUSSION
Respondent contends that the Petition must be

dismissed because a prior habeas petition was
dismissed on the merits and petitioner did not obtain
an order authorizing the filing of the instant Petition.
The Antiterrorism and Effective Death Penalty

Act of 1996 (the “AEDPA”) provides that a claim
presented in a second or successive federal habeas
petition that was not presented in a prior petition
shall be dismissed unless:
(A) the applicant shows that the claim

relies on a new rule of constitutional law,
made retroactive to cases on collateral review
by the Supreme Court, that was previously
unavailable; or
(B)(i) the factual predicate for the claim

could not have been discovered previously
through the exercise of due diligence; and
(ii) the facts underlying the claim, if

proven and viewed in light of the evidence as
a whole, would be sufficient to establish by
clear and convincing evidence that, but for
constitutional error, no reasonable factfinder
50a
would have found the applicant guilty of the

underlying offense.
28 U.S.C. § 2244(b)(2).
Further, “[b]efore a second or successive

application permitted by this section is filed in the
district court, the applicant shall move in the
appropriate court of appeals for an order authorizing
the district court to consider the application.” 28
U.S.C. § 2244(b)(3)(A). If the petitioner does not first
obtain authorization from the appropriate court of
appeals, the district court lacks jurisdiction to
consider the petition. Burton v. Stewart, 549 U.S. 147,
152-53, 127 S. Ct. 793, 166 L. Ed. 2d 628 (2007) (per
curiam).
Here, petitioner previously filed a Section 2254

petition challenging his 1982 conviction, which was
denied on the merits in 1993. (See Pet. Exhs. 6, 7.) The
instant Petition challenges the same 1982 conviction.
However, nothing in the record demonstrates that
petitioner satisfied the gatekeeping requirements by
obtaining the requisite authorization from the Ninth
Circuit and petitioner does not claim that he sought
or received such authorization. Rather, petitioner
claims that the instant Petition does not require
authorization because he has raised a material Brady
claim, the factual predicate for which did not ripen
until 2010 “at the earliest.” (Opp. at 11-12.) Petitioner
maintains that his Brady claim, raised for the first
time in the instant Petition, falls within an exception
to the AEDPA’s gatekeeping requirements pursuant
to Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct.
2842, 168 L. Ed. 2d 662 (2007) and United States v.
51a
Lopez, 577 F.3d 1053 (9th Cir. 2009) and thus, does
not constitute a “second or successive” petition. (Opp.
at 12-21.)
In Panetti, 551 U.S. at 947, the Supreme Court

held that the gatekeeping requirements for “second or
successive” petitions did not apply to a Ford 4 claim
brought in a Section 2254 petition filed when the
claim was first ripe. Noting that “Ford-based
incompetency claims, as a general matter, are not ripe
until after the time has run to file a first federal
habeas petition,” the Supreme Court concluded that
Congress “did not intend the provisions of AEDPA
addressing ‘second or successive’ petitions to govern a
filing in the unusual posture” in which a Section 2254
petition raising a Ford-based incompetency claim was
filed as soon as that claim was ripe. Id. at 943-45. The
Supreme Court identified three considerations in
support of this conclusion: “(1) [T]he implications for
habeas practice of adopting a literal interpretation of
‘second or successive,’ (2) the purposes of [the] AEDPA
and (3) the Court’s prior habeas corpus decisions,
including those applying the abuse-of-the-writ
doctrine.” Lopez, 577 F.3d at 1063. As the Supreme
Court explained, the phrase “second and successive”
is not self-defining: “It takes its full meaning from
[the Court’s] case law, including decisions predating
the enactment of the [AEDPA]” and the Court “has
declined to interpret ‘second or successive’ as
4Ford v. Wainwright, 477 U.S. 399, 409-10, 106 S. Ct. 2595, 91

L. Ed. 2d 335 (1986) (concluding that “the Eighth Amendment
prohibits a State from carrying out a sentence of death upon a
prisoner who is insane”).
52a
referring to all § 2254 applications filed second or

successively in time, even when the later filings
address a state-court judgment already challenged in
a prior § 2254 application.” Panetti, 551 U.S. at
943-44. Usually, “a petition filed second in time and
not otherwise permitted by the terms of § 2244 will
not survive AEDPA’s ‘second or successive’ bar.”
However, the Court was reluctant to construe “a
statute, implemented to further the principles of
comity, finality, and federalism, in a manner that
would require unripe (and, often, factually
unsupported) claims to be raised as a mere formality”
in the first petition. Id. at 947.
Following the Supreme Court’s decision in

Panetti, the Ninth Circuit considered whether a
second-in-time 28 U.S.C. § 2255 motion, raising a
Brady claim, was subject to the AEDPA’s “second or
successive” requirements. 5 Lopez, 577 F.3d at 1055-
56. Although the Ninth Circuit acknowledged that the
5 In particular, the Ninth Circuit in Lopez focused on the

gatekeeping provisions in 28 U.S.C. § 2255(h), which are similar
to those in § 2244(b). 28 U.S.C. § 2255(h) provides:
A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate
court of appeals to contain—
(1) newly discovered evidence that, if proven
and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and
convincing evidence that no reasonable
factfinder would have found the movant
guilty of the offense; or
(2) a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable.
53a
considerations identified in Panetti in support of its

holding were not specifically limited to Ford claims,
the Court nevertheless concluded that “Brady claims
are not categorically exempt from AEDPA’s
gatekeeping provisions and that second-in-time
Brady claims that do not establish materiality of the
suppressed evidence are subject to dismissal under
§ 2255(h)(1).” Id. at 1064, 1066. In reaching this
decision, the Ninth Circuit considered the pre-
AEDPA abuse-of-the-writ standard. Before the
passage of the AEDPA, federal habeas courts could
reach the merits of a Brady claim in a second-in-time
petition only if the suppressed evidence was material,
i.e., there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of
the proceeding would have been different. Id. at 1064.
Second-in-time Brady claims that did not establish
materiality would have been barred under the pre-
AEDPA abuse-of-the-writ doctrine. As such, as the
Ninth Circuit explained, at a minimum, Brady claims
that would have been barred under the abuse-of-the-
writ doctrine are subject to the AEDPA’s gatekeeping
requirements. Id. at 1068. The Ninth Circuit
concluded that, “although the Court’s reasoning in
Panetti is potentially applicable to other types of
habeas claims, [it] did not believe Panetti can be read
to support a construction of AEDPA that expands
federal courts’ pre-AEDPA ability to reach the merits
of claims presented in second-in-time petitions.” Id. at
1056 (emphasis in original). Because the petitioner in
Lopez did not establish materiality under Brady, her
claim would have been barred under the abuse-of-the-
writ doctrine and therefore, she was required to
satisfy Section 2255(h)(1)’s gatekeeping provisions.
54a
However, the Ninth Circuit expressly declined to

“resolve the more difficult question whether all
second-in-time Brady claims must satisfy AEDPA’s
gatekeeping requirements.” Lopez, 577 F.3d at 1067
(emphasis in original); see also id. at 1056 (declining
to resolve “the more difficult question whether federal
courts have jurisdiction to consider a subset of
meritorious Brady claims that federal courts would
have considered on the merits under the pre-AEDPA
abuse-of-the-writ doctrine but that would be barred
under a literal reading of ‘second or successive’” in the
gatekeeping requirements); id. at 1068 (“we leave
open the more difficult question whether Panetti
supports an exemption from § 2255(h)(1)’ gatekeeping
provisions for meritorious Brady claims that would
have been reviewable under pre-AEDPA prejudice
standard”). Although not resolving the issue, the
Ninth Circuit noted that the Supreme Court’s
reasoning in Panetti may not “translate to second-in-
time Brady claims” for at least two reasons. First,
Section 2255(h)(1) contains an express statutory
standard for dealing with “second or successive”
claims based on “newly discovered evidence.”
“Congress’ expressed intent to limit the
circumstances in which a court can entertain a
petition based on newly discovered evidence may
therefore distinguish Brady claims from the ‘unusual
posture presented’ in Ford claims.” Id. at 1065.
Second, a literal application of Section 2255(h)(1)
would not bar all second-in-time Brady claims
because some meritorious claims will establish “by
clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the
offense,” and thereby, establishing one of the
55a
exceptions to the bar. As the Ninth Circuit noted,

“[p]erhaps the differing effects that § 2255(h)(1)
would have on meritorious Brady claims-barring
some and allowing others to proceed-is a ‘clear
indication’ that Congress intended to restrict the type
of Brady violations for which courts may grant relief
in second-in-time petitions.” Id. at 1066. Such
considerations would be equally applicable in
addressing second-in-time Section 2554 petitions
raising Brady claims.
The Ninth Circuit has not resolved the question

left open by Lopez. In King v. Trujillo, 638 F.3d 726,
729 (9th Cir. 2011) (per curiam), the Ninth Circuit
indicated that it had recently recognized that “a
Brady v. Maryland violation claim in a habeas
petition may not be subject to the ‘clear and
convincing standard,’ provided the newly discovered
evidence supporting the claim was ‘material’ under
Brady.” (Footnotes omitted, emphasis in original).
However, because the petitioner’s claims in King did
not fit “within this narrow exception,” the Ninth
Circuit did not further consider this issue. Id.
Several circuits have held that second-in-time

habeas petitions raising Brady claims are not exempt
from the second or successive gatekeeping
requirements. See Quezada v. Smith, 624 F.3d 514,
520 (2d Cir. 2010) (applying section 2244(b) to Brady
claim); In re Siggers, 615 F.3d 477, 479 (6th Cir. 2010)
(same); Tompkins v. Sec’y, Dep’t of Corr., 557 F.3d
1257, 1259-60 (11th Cir. 2009) (per curiam); Evans v.
Smith, 220 F.3d 306, 323-24 (4th Cir. 2000) (rejecting
argument that the petitioner was not required to meet
the AEDPA’s gatekeeping requirements in order to
56a
bring his Brady claim); Johnson v. Dretke, 442 F.3d

901, 911 (5th Cir. 2006).
In light of the Ninth Circuit’s explicit refusal to

resolve whether all second-in-time Brady claims must
satisfy the AEDPA’s gatekeeping requirements, the
Court concludes that petitioner has not shown that he
is exempt from the gatekeeping provisions of Section
2244(b). 6 See Fellman v. Davison, 2011 WL 2471579,
at *3 (N.D. Cal. Jun. 22, 2011) (concluding that Lopez
did not create a Section 2244 exception to Brady
claims). The decision whether to allow petitioner to
proceed with his Petition alleging a new Brady claim
must be made, in the first instance, by the Ninth
Circuit. 7 See Lopez v. Runnels, 2010 WL 2348742, at
6 Indeed, as the district court in Fellman explained, subsequent

Ninth Circuit case law supports the conclusion that no such
Brady exception exists. In United States v. Buenrostro, 638 F.3d
720, 725-26 (9th Cir. 2011) (per curiam), the Ninth Circuit
dismissed a second-in-time petition based on ineffective
assistance of counsel, finding that “the words of § 2255(h)
indicate Congress’ clear intent to prohibit us from certifying
second-in-time claims, ripe at the time of a prisoner’s first § 2255
proceeding but not discovered until afterward, unless such
claims” meet the AEDPA’s gatekeeping standards.
7The Court also rejects petitioner’s remaining contentions that

application of the AEDPA’s gatekeeping requirements would
have an impermissible retroactive effect and would be
unconstitutional. (See Opp. at 23-31.) The Ninth Circuit has held
that the AEDPA’s gatekeeping requirements apply to new
petitions filed after the date of the AEDPA’s enactment, even if
the original petition was filed before the AEDPA’s enactment,
United States v. Villa-Gonzalez, 208 F.3d 1160, 163-64 (9th Cir.
2000) (per curiam); see also Cooper v. Calderon, 274 F.3d 1270,
1272 (9th Cir. 2001) (per curiam), and has applied these
gatekeeping requirements to a second habeas petition raising a
57a
*3 (E.D. Cal. Jun. 8, 2010) (concluding that in light of

Lopez, the decision whether to permit the petitioner
to proceed on his Brady claim must be made by the
Ninth Circuit), Report and Recommendation adopted
by 2010 WL 3185660 (E.D. Cal. Aug. 9, 2010);
Fellman, 2011 WL 2471579, at *3. 8
Therefore, before petitioner can proceed with the

instant Petition, he must move in the United States
Court of Appeals for the Ninth Circuit for an order
authorizing the district court to consider the
application. 28 U.S.C. § 2244(b)(3). As such, the
Petition must be dismissed without prejudice to its re-
filing upon obtaining authorization from the United
States Court of Appeals for the Ninth Circuit. 9
Brady claim. See, e.g., Gage v. Chappell, 793 F.3d 1159, 1165-66
(9th Cir. 2015).
8Given the limited record currently before the Court, it does not
resolve the materiality issue at this time. The Court notes,
however, that it appears unlikely that petitioner can establish
that the evidence at issue was material under Brady. As the
California Court of Appeal noted, there was strong evidence that
the shooter was inside the restaurant and strong, if not
overwhelming, identification evidence that petitioner was the
person who shot Horton. (See Pet. Mem. Exh. C at 36-43.)
9Respondent also argues that the Petition is subject to dismissal

because it was unverified. However, on August 28, 2015,
petitioner requested leave to file a verification of the Petition,
which was granted on September 1, 2015. See Rules Governing
Section 2254 Cases in the United States District Courts, Rule
2(c)(5).
58a
RECOMMENDATION
IT THEREFORE IS RECOMMENDED that the

District Court issue an Order: (1) Approving and
accepting this Report and Recommendation;
(2) granting respondent’s Motion to Dismiss; and
(3) directing that Judgment be entered dismissing
this action without prejudice. 10
DATED: February 4, 2016
/s/ David T. Bristow

THE HONORABLE DAVID T. BRISTOW
UNITED STATES MAGISTRATE JUDGE
10Ninth Circuit Rule 22-3(a) provides in part that “[i]f a second

or successive [§ 2254] petition … is mistakenly submitted to the
district court, the district court shall refer it to the court of
appeals.” Such referral is not appropriate here, as there is no
indication that petitioner mistakenly filed the Petition in this
Court. On the contrary, petitioner’s contentions that he is
exempt from the gatekeeping requirements affirmatively
demonstrates that he did not mistakenly file in this Court.
59a
NOTICE
Reports and Recommendations are not

appealable to the Court of Appeals, but may be
subject to the right of any party to file Objections as
provided in the Local Rules and review by the District
Judge whose initials appear in the docket number. No
Notice of Appeal pursuant to the Federal Rules of
Appellate Procedure should be filed until entry of the
Judgment of the District Court.
60a
APPENDIX E
UNITED STATES COURT OF APPEALS

No. 16-55418 D.C. No. 2:15-cv-04222-R-DTB

Central District of California,
Filed: JUL 20 2018 Los Angeles

v.

ORDER
Before: CALLAHAN and BEA, Circuit Judges, and

RESTANI, * Judge.
The panel has voted to deny the petition for panel

rehearing and Judges Callahan and Bea vote to deny
the petition for rehearing en banc. Judge Restani
makes no recommendation on the petition for
rehearing en banc. The full court has been advised of
the petition for rehearing en banc and no judge has
requested a vote on whether to rehear the matter en
banc. Fed. R. App. P. 35. The petition for panel
*The Honorable Jane A. Restani, Judge for the United States

61a
rehearing and the petition for rehearing en banc are

DENIED.

Prince Cert Petition As Filed 18-1112

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No.

TERRENCE EDWIN PRINCE,

PETITION FOR A WRIT OF CERTIORARI

The Antiterrorism and Effective Death Penalty

The questions presented are:

1. Is a Brady claim brought in a second-in-time

2. Does applying AEDPA’s severely limiting gate-

QUESTIONS PRESENTED ...................................... i

A. The courts of appeals are divided

APPENDIX A — Memorandum, Prince

APPENDIX B — Opinion, Brown v. Muniz

APPENDIX C — Order Accepting Findings,

APPENDIX D — Report and Recommendation

APPENDIX E — Order, Prince v.

Alexander v. United States,

Apprendi v. New Jersey,

Calderon v. U.S. Dist. Court for the

Castro v. United States,

Class v. United States,

Daniels v. United States,

Gonzalez v. Sec., Dep’t of Corr.,

Haley v. City of Boston,

I.N.S. v. St. Cyr,

Landgraf v. USI Film Prods.,

Muniz v. United States,

Oil States Energy Servs., LLC v.

Pratt v. United States,

Scott v. United States,

Tompkins v. Sec’y, Dept. of Corr.,

United States v. Lopez,

United States v. Olsen,

United States v. Orozco-Ramirez,

United States v. Ortiz,

United States v. Villa-Gonzalez,

28 U.S.C. § 2244(b)............................................ passim

28 U.S.C. § 2244(b)(2)(B) ........................................1, 3

28 U.S.C. § 2244(b)(2)(B)(ii) ............................ 9, 10, 30

28 U.S.C. § 2244(b)(3)(A) ............................................8

28 U.S.C. § 2244(d)(1) ...............................................18

28 U.S.C. § 2244(d)(2) ...............................................18

28 U.S.C. § 2255 ............................................ 21, 25, 26

28 U.S.C. § 2255(h) ...................................................14

Cal. Penal Code § 190.2(a)(17)(i) (1980) .....................6

Elizabeth Napier Dewar, A Fair Trial

Expanded Discovery in Criminal Cases,

Vida B. Johnson, Federal Criminal

Cynthia E. Jones, A Reason to Doubt:

Order, In re: George Edward Austin,

Barry Scheck et al., Actual Innocence:

David E. Singleton, Brady Violations:

This case presents two cert-worthy questions

I. In 2010, Mr. Prince learned that the State had

The Ninth Circuit’s holding that claims based on

AEDPA’s gatekeeping provisions simply because they

II. The Ninth Circuit’s holding also implicates a

The Ninth Circuit’s retroactivity ruling is con-

The petition should be granted.

OPINIONS AND ORDERS BELOW

The decision of the United States Court of Ap-

The United States Court of Appeals for the Ninth

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 2244(b) provides:

(1) A claim presented in a second or successive ha-