of pennsylvania and he has joined us previously and has always been a great asset to this court so we feel very fortunate to have him with us thank you very much just as much all right just to let you know we have reviewed the records in your cases the briefs and we are familiar with the facts of course how you choose to spend your time is up to you but please don't feel like you need to tell us the facts for our sake all right with that we will begin with the scott versus united states of america good morning please the court i'm rosemary cacace on behalf of gino scott and we're here today because the system failed all of the wonderful checks and balances we have in place did knocked ensure a fair trial in this case because both of the lawyers involved defense and the prosecution failed to do their job here mister excuse me mr scott's expense yet no one is willing to take any responsibility for let me ask you a question that i think there's a problem as well with question is what test would you prescribe for us and of course we have tompkins also to contend with here but if we were writing on a clean slate what test would you prescribe for us to be able to identify which claims if any should be considered not second or successive this case gives a good example of the test i believe because what is the test the test is did the government have this evidence and failed to disclose it to the defense during the trial and throughout the twenty to fifty five proceedings and after they were concluded then years later the government notif soffit because another lawyer up in this in massachusetts brought it is attention and there was no reasonable probability that the defendant in this case could have raised the brady claim during his first twenty two fifty five then he ought to be allowed another shot at a first twenty to fifty five well let me ask you this should there be a requirement that sort of like a strickler kind of requirement that it be what is a true or a meritorious brady claim potentially meritorious brady claim before we are before we could consider whether it could be violation at all no matter how in consequential and let me say the brady violations of course are serious in their own right but had no matter how in consequential to the outcome of the case could then skip the ed pub bar on second or successive petitions and and that's that's what my concern is so i wonder why it is that it would not have to pass that strickler test in order to even be considered it should pass the strickler test but even it and i would say that even if it is a color it ought to be aired in the system through a first twenty to fifty five because it was information that was withheld by the government which is probably one of the most egregious things that can happen in the case if we are truly allowed to rely on the government's representations is the government not required to do anything not to look at its own files this was in their possession the whole time right and that is a big part of it and i and i can appreciate why that's an important and big part of this but to me if we're talking about a claim that you know is not meritorious in the end then i am concerned about violating what seems to be clear congressional intent to avoid allowing second or successive petitions involving the discovery of new evidence when there not a claim of actual innocence now i recognize i think there's that in a different category would be the true strickler claim that doesn't have to show actual innocence but could show but would show a reasonable probability of a different outcome and perhaps that might be that should be the test if there is more than a colorable claim although i believe all claims  be aired if the claim is beyond conceivable but doesn't reach the case of actual innocence there has to be a middle ground and the middle ground would be if it has a parent merik if it has a substantial basis or not and i think that the court in lopez i believe is the ninth circuit discussed this and in that case they said that the in the informant never testified against this defendant never said anything he said the informant testified against someone else that would be even an example of what you're concerned about i believe and in that case since the informant did not provide testimony at trial against the defendant cross examination of the informant would not have been affected but doesn't the test really have to be whether or not the brady material sort of undermines the outcome of the case yes that then we have to look at the brady material against the what happened at the trial and if the court determines that it doesn't undermine the outcome yes it was brady material the government was wrong it should have produced it but at the end of the day it wouldn't it wasn't likely to change the outcome of the case and that should be the end and we shouldn't be granting the right to go forward yes sir if the claim and i think that's what the ninth circuit had come up with it so then we have to look at the evidence here and say whether or not the undisclosed dollars and was and it was like a contingent fee arrangement if the government got a conviction he was going to get a piece of the action i mean that to me is absolutely incredible but now the jury knew that that this guy was a paid witness is like a witness in a civil case who's going to get personal injury cases going to get twenty percent of the of the verdict for testifying so if that wasn't enough to convince the jury that the guy was not a truthful and shouldn't be believed why should this additional material make any difference plus the fact he in my view he certainly wasn't a major witness in the case the court the district court did not conduct any type of prejudiced analysis whether it's prejudice or materiality the court did not conduct that analysis and that analysis should have been conducted in this case the court before saying it's second or successive or it's allowed should have to look at it and see if it undermined confidence in the outcome and yes of course the judge really did that and  when he reviewed the reopen the first twenty to fifty five i mean except to the extent your honor that he never reached prejudice on the first twenty two fifty five he never reached materiality on the second and he was the judge the tried the case here and if nothing else it should go back to him to address those prongs because yes there was other testimony oh the codefendant testified but the judge knows that as he told the parties at the trial i can't understand a word that guy is saying he could not understand oh and made some statements to the effect of and this is volume two of the trial transcript one twenty one one twenty two and one thirty five he is very  functioning in his capacity as a witness i can't understand anything he saying and i don't think no with the jury can understand him either and so that takes away from whatever to my was said and other than to my oh there's not really any evidence there of concrete value as to what was agreed upon because the conversation at the hotel was not recorded there are no videos there's no fingerprints the agents weren't there they were outside observing and they say mr scott really was there but why was he there being present is not conspiring and that's the big problem here nobody has looked at whether this is a material brady claim or not or whether counsel's performance in this case prejudiced the defendant whether that confidence in the verdict where it was based in large part on the testimony of mr pena is undermined in any way the government didn't disclose it well we can't consider that defense counsel is categorically allowed to rely on the representations of the government the government says that said you can rely on it so you're not in i get to the substance of our arguments in the courts questions i do want to be sure the court is aware that the representations in our brief about scott having a life sentence are no longer correct he got executive clemency his sentence was reduced to two hundred sixty four month it's a documentary one sixty one it doesn't affect this court's jurisdiction but i want to be sure that they the facts are right now i wasn't sure you would have seen that we hadn't brought it up thank you as far as humans we made a mistake in the prosecution of this case and we didn't discover that mistake until after the first twenty two fifty five was resolved but once we brought the mistake to the court's attention every single thing that the court did was absolutely correct this the five and yes language we could talk about that another time but would you agree that the brady claimant issue in tompkins was clearly not meritorious i mean that's what th isn't that what the court basically said it wasn't meritorious in other words if there was no reasonable probability that the evidence that hadn't been disclosed the would would have affected the outcome of the trial your honor i don't recall the tompkins case getting into extensive discussion about the merits of the brady claim i certainly know that strickler did that that was not and all those circular was looking at cause and prejudice and and was not in the context of a success of twenty to fifty five i agree that at least strickler and  the california case locus where the ninth circuit case i thought was california and those cases actually did examined the merit of the brady claim i'm not sure that i read tom tompkins as having gone into that but for certain congress knew how to draft a statute that made an exception for a brady claim and it created in twenty two fifty five an exception in the limitations provision for when a government impediment is removed it did not make that exception for a successive twenty two fifty five motion and that actually that statutory construction was one of the things that drove the district court's analysis and i think that is one of the things that have driven the other cases pinetti stewart and tompkins included well let me ask you if tompkins did discuss the lack of merit in the brady claim that mr it yes i think it would you know i suppose it the discussion of the merit of the brady claim might be informative because there is a possibility under twenty two fifty five h to bring a bra claim based on newly discovered evidence if it meets the standard and it's the end it establishes that this new evidence the conviction would not have occurred that i don't have the statute in front of me but it clearly convincing evidence that we would not obtained a conviction otherwise there are going to be some brady cases that rise to that level and you know i'd point the court too but even the but i guess i'm talking about the brady cases where it's meritorious in that there's a reasonable probability that the outcome would have been different but that it doesn't show actual innocence ok i get what i'm trying to say is that with respect to this court's examination of the merit of the brady claim and tomkins obviously if it doesn't make a meritorious brady claim it's not going to reach that higher standard for twenty to fifty five age so you know to some extent a court does have to examine the yen packed of the previously undisclosed evidence what i'm saying is that congress drafted a statute that set a much higher standard for newly discovered evidence and there is no exception time filed without qualifying a second her success right and stewart explains the difference between the two of them previously undiscoverable but facts that existed facts that were previously und but existed newly discovered evidence is within twenty to fifty five age and that governs what happened and pinetti what happened in martina's villareal what happened in stuart these are facts that didn't exist  district court had allowed the petitioner to go back and had stayed in a bade his claim his federal claim while he did additional state claims  and the court said in that case that it was ok for him to do that for two reasons one he demonstrated good cause for his not having exhausted them previously it's not that they didn't exist but he demonstrated good cause for not having exhausted them previously and two they were potentially meritorious and it seems to me that both of those kinds of factors would also apply in the case of a true brady violation where it was beyond the but how are of the defendant to have discovered the claim previously i recognize it's in a different context but still and two you know if it's truly a meritorious brady claim that is that there is a reasonable probability that the outcome could have been different than it seems very similar to me as the ryans case that the supreme court relied on and pinetti and so it seems to me like those are considerations that we need to account for when we look at whether a claim counts as second or successive merely because it's second in time i wonder what your thoughts are on that with respect to ron's i didn't study that because i don't think any of us cited it and i didn't pick up on the distinctions when i read but if it was a post case i'm not sure exactly what i would say about it i suspect it was it was ok then i think that those cases may have informed the supreme court's analysis but in the end the supreme court in penality said this is a narrow exception these are extremely unusual circumstances and they're not circumstances that are contemplated expressed lee by another provision of the statute except that it didn't say pernetti is the on the ford claim is the only exception it specifically said there are however narrow exceptions with an ass so obviously that and the fact that it refers to ryan and it actually also refers to another case castro i know a castro right but i think ryan's is the one that i wanted to talk about because i think it's more in line with what we're talking about here but it seems to me like it was outlining specific considerations for a court to consider when it was evaluating whether a claim was second or successive or merely second in time and and you're reading it though to say no these aren't considerations that you look at to make that determination pinetti is sort of an outlier and it was just designating a specific type of claim that falls outside of and i understand that's how i would read it yes and i think that reading is also what this court used in stewart i mean stuart makes clear that there's a difference between a claim that didn't exist and certainly a conviction that set aside that had served as a predicate that didn't exist you had to go and do that later and and a claim that you just didn't know about because it was undiscovered so i don't think this court has had has room in its precedent and the text of twenty two fifty five to have made this a fresh twenty two fifty five claim and i don't think the district court did either i would like to talk a little bit about what the district court did and the basis for its ruling there the court certainly had the discretion to reopen the original twenty two fifty five and re examine the knee effective assistance of counsel claim and it was correct to do that but it was also correct to resolve the case the way that it did based on the performance prong it did not need to have an evidentiary hearing and there is no need to send this case back for an evidentiary hearing this is not a case like the turner case that we cited a supplemental authority where the  scope of the undisclosed evidence is far reaching there's all to point to different categories the court has to figure out exactly what the evidence is we know what the evidence is that was undisclosed there's two pieces and they're small they're small little additional pieces that added to the massive impeachment already existing because one hundred sixty eight thousand dollars over the course of three years an additional fourteen thousand dollars just for this case that's one third of his annual income and probably a whole lot more than a lot of the jurors were making so there was no need for an evidentiary hearing all the court had to figure out was what the undisclosed evidence meant in the context of this case but did the court did the court make a finding that there was no prejudice no it didn't it went straight on the performance prong that it wasn't wrong about that to set aside the court's decision on the performance problem you have to do two things two things that strickland and chandler and lots of other cases say you can't do first you would have to examine both defense counsel's conduct of this case with twenty twenty hindsight you can't be influenced about the fact that we figured out later that we made a mistake there was a mistake yes but that doesn't mean that what counsel knew then at the time the trial was being conducted was in his actions were were ineffective assistance that doesn't mean that he to perform deficient lee the court itself is something i guess i'm asking a different question i'm talking about prejudice on the brady on the brady claim not on the ineffective assistance well as the defense brief points out and is this court's precedent in strickland pointing out the prejudice standard is very very similar whether there was a reasonable probably true but the point is if we're asking about whether a brady claim constitutes a second or successive client claim or rather just second in time claim then it doesn't really matter i don't think maybe doesn't you can correct me whether the court rejected the ineffective assistance claim on on the performance well there was no there was there is no room in gonzales for the court to have reopened the original twenty two fifty five with a substantive brady claim it could only go back to the claims that were greatest in the original twenty two thirty five and that's what it did so it reexamined the ineffective assistance of counsel claim raised in the original twenty two thirty five that had the discretion to do that and it was right to do it and it was right in the way it resolved that if if it had reopened the original twenty two fifty five for a new substantive claim that would have been the same thing as granting a new twenty two fifty five which stewart and you can't do right and i understand all of that but my point is simply we're trying to decide yes there are two things we're trying to decide did the district court act correctly under the precedent and our circuit and in the supreme court but also as a part of that inquiry we have to decide whether a brady claim can be brought in this circuit as a second in time claim and not qualify as a second or this guy wouldn't have succeeded because a meritorious it has to be a meritorious brady claim to get by the old abuse of the writ law so that's the way the ninth circuit looked at it my argument to the court is that i don't think that we can do that anymore i think the statute controls and so of course the statute controls but that is a circular argument because we're trying to decide what second or successive means and so your argument assumes that second or successive means meritorious brady claims and my position is it might but maybe it doesn't your own right my argument is that second or successive means based on newly discovered evidence not evidence that had not existed before that's the distinction i'm making and i think that's a distinction that this court made in tompkins and newly discovered to home newly discovered but previously undiscoverable by the defendant that's what how that withheld i don't think that tomkins made that distinction respectfully your honor i'm a presentation in the brady oh or julio context and the court rejected that argument yes so it seems to me that what tomkins may have rejected was the broad rule that the petitioner in lopez brought and which was rejected by the night circuit so i'm not sure tomkins actually ruled on the possibility that was left open and lopez whether maria meritorious brady claim would be second or successive you have a response for that well that goes back to my earlier recollection that tompkins didn't discuss the relative relative merit i think it just ruled that brady claim there is no exception for that i don't i don't think it actually examined for anybody cla but i think i think what it held is that twenty to fifty five age means what it says a newly discovered evidence is newly discovered evidence regardless of where it came from and i think that's the judgment that congress made but even if you were to hold like lopez that a meritorious brady claim might be accepted you still don't change the result in this case because this was a witness who was peripheral he offered evidence that was important yes but he wasn't the star witness and you know and you might be perfectly correct on that but wouldn't wouldn't it be better practice for us to send it back to the district court to decide that in the first instance i don't think you have to for two reasons i agree we don't have to but why shouldn't way well because this is not a claim if you look at the cases that scott cites that talk about set a preference for setting a case back they are all cases where there was substantial evidentiary development about what the newly discovered previously undisclosed evidence was we didn't have to do that in this case we knew what it was the only task was to examine that evidence in the context of the record which this court is just as capable of doing as the district court did thank you a couple of brief points mr clegg mr scott was very fortunate that he did get clemency but this is still for our purposes should be considered a life case because defense counsel walked in to the court and said well does it really matter to our analysis if he got life or a month only for purposes of the ineffective assistance to show that counsel knew it was life and was very concerned about what else was out there but as soon as he hears well the government would have given you anything if there was anything else ok doesn't matter if it's life the client's not allowed to hear anything he doesn't need to because the government says he's guilty and in effect what it does is say the government doesn't investigate but represents something is not there it's ok for the defense to not investigate and believe it's not there and that categorical rejection of the performance prong of ineffective assistance can't stand scrutiny as for the newly discovered evidence and we keep calling it newly discovered but it wasn't newly discovered to anybody except mr scott the prosecutor did say that he never heard about it the government appellate government recognizes there was a mistake made nobody has explored in the district court or otherwise who made the mistake obviously the da had all this evidence in their file and that the attorney a prosecutor from massachusetts before he used this informant wanted to know who he was using so he does he came down and read it from massachusetts but from jacksonville to tampa apparently there was no communication the u s attorney's office in tampa wouldn't use them again about because he's not trustworthy and that goes back to the government says there are small pieces of evidence here and there was massive cross examination impeachment to an extent that might be true depending on how you view the trial and if anyone's going to view the trial in the first instance it should be the district court that was there because the district court knows how important this was you have to read not only the testimony but the opening  closing the government relied on this for pea extensively throughout its closing argument throughout all the arguments a court and yet they now say he's a peripheral witness he was the strongest witness they had at the time to my testimony it was embarrassing it was on a not understandable according to the district court judge who heard it i didn't hear it but the judge did and he thought it was not understandable and that brings us to all this impeachment came out there were two things he had a prior conviction ok he had a prior conviction in one thousand nine hundred six in the government explained to the jury at length this man paid his debt to society he finished his supervised release and went to work to right the wrongs that are out there he wants to clean up the street and that's exactly what mr pea said also oh i want to help the government get these bad guys off the street that's why i'm doing this where you're getting paid to and this is an outrageous sum of money and it's outrageous he got twenty percent of the cut of what was seized as well however as the government explained we all get paid for working this was his job the government emphasized this was his job of course he got paid if it was his job the government's basically putting him up there rehabilitating him and putting him up there next to the d their job we respect them because their job is to clean up the streets to do what they do and that's the same job that mr pea has nobody mentioned the fact that gooden well they won't use him over in tampa he's not trustworthy d e a knows that he lied about the heroin the e p a knows that he never came forward and said hey you know the guy who got me involved with you all well we kind of got involved because and the first deal i did i got a cut of his money and i wasn't and was he working for da at the time it's not clear but in any event he gets a cut of this money and they stole the cocaine they stole it from these drug dealers over here and the d a didn't find out about it until the drug dealers were caught and they said hey these two informants stole the drugs etc etc and when d n a found out about this the government and the district court was quick to say oh a you know they took care of it and mr pea right away admitted it he never admitted to anything until he got caught though by the feds with his pants down they knew he lied da knew a lie and so he admitted it at that point and that does nothing to rehabilitate his truthfulness or in this case his dishonesty and those pieces of impeachment that were given over we're totally ineffective compared to what was really out there and that agent got up there and testified from da how we used m pena he was so good and that type stuff if they knew if the jury knew the da wouldn't use in many more in some places but of course jacksonville said with just ignore that the jacksonville d i'm not saying the prosecutor the prosecutor didn't even bother looking at their fatah and that's ok that's not ok and that's not how the system works and either ground is reason to send it back to the  district court thank you thank you coun