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Statement of SOTOMAYOR, J. 

SUPREME COURT OF THE UNITED STATES 

PAUL DAVID STOREY v. BOBBY LUMPKIN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 

No. 21–6674. Decided June 30, 2022 

The petition for a writ of certiorari is denied. 

 Statement of JUSTICE SOTOMAYOR respecting the denial 

of certiorari. 

The facts of this case offer a cautionary tale for those 

Courts of Appeals that have yet to define what constitutes

a restricted “second or successive habeas corpus application,” 28 U. S. C. §2244(b)(2), in the context of prosecutorial 

misconduct. I write to underscore how erroneous the Fifth 

Circuit’s definition is and how it unfairly deprives individuals of an opportunity to raise serious claims of prosecutorial malfeasance in federal habeas proceedings. 

After a jury convicted petitioner Paul David Storey of

murdering Jonas Cherry in the course of a robbery, prosecutors argued for a death sentence. In the State’s punishmentphase closing argument, a prosecutor told the jury: “[I]t 

should go without saying that all of Jonas’s family and everyone who loved him believe the death penalty is appropriate.” Ex parte Storey, 584 S. W. 3d 437, 447 (Tex. Crim. 

App. 2019) (Walker, J., dissenting). The jury sentenced Storey to death.

In December 2016, eight years after trial and months before Storey’s scheduled execution, Storey’s counsel learned 

that the prosecutor’s assertion during the punishmentphase closing arguments was false. In truth, Cherry’s parents vigorously and consistently opposed the State’s choice 
 

 

 

 

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Statement of SOTOMAYOR, J. 

to seek the death penalty for Storey. Cherry’s parents communicated their views to the State’s prosecutors before

trial, including the prosecutor who told the jury otherwise

in closing. But the State never disclosed Cherry’s parents’ 

wishes to Storey or his counsel. Instead, the prosecutor

knowingly and affirmatively misrepresented those wishes 

to the jury in order to secure a death sentence.

Based on this revelation, Storey sought postconviction relief in state court. He asserted that the State’s misconduct 

during his prosecution violated the constitutional rules set

forth in cases like Brady v. Maryland, 373 U. S. 83 (1963) 

(State’s failure to turn over exculpatory evidence violates 

due process), and Napue v. Illinois, 360 U. S. 264 (1959) 

(State’s elicitation of knowingly false testimony violates due 

process). Because Storey had previously filed an application for postconviction relief, Texas law required Storey to

establish that the factual basis for his new claims was unavailable when he filed his first application. See Tex. Code 

Crim. Proc. Ann., Art. 11.071, §5(a)(1) (Vernon Supp. 2006).

A state postconviction court found this standard satisfied,

held that the prosecutor’s knowingly false statement in 

closing argument violated the Constitution, and recommended that Storey receive a new punishment trial. 

A fractured Texas Court of Criminal Appeals reversed.

The majority held that Storey could not bring his misconduct claims because he had failed to show that those claims’ 

factual basis was not previously available through the exercise of reasonable diligence. The majority reached this 

conclusion in part because although Storey’s prior postconviction counsel (who by then was deceased) had a strong 

reputation for diligence, Storey had been unable to present 

specific evidence proving that this deceased attorney had

exercised diligence in his particular case. Ex parte Storey, 

584 S. W. 3d, at 439. Judge Yeary and Judge Walker filed 

dissents, both joined by Judge Slaughter.

Storey then sought relief in federal court, which the Fifth 
 

 

 

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Statement of SOTOMAYOR, J. 

Circuit ultimately denied on federal procedural grounds.

See 8 F. 4th 382 (2021). The State argued that Storey’s request for relief constituted a “second or successive habeas

corpus application” under 28 U. S. C. §2244(b), which bars

federal courts from considering such applications except in

limited circumstances not present here. Storey maintained 

that his request was not “‘an abuse of the writ’” under this

Court’s case law and therefore not successive, given that he 

was not aware of the State’s misconduct until late 2016. 

Banister v. Davis, 590 U. S. ___, ___ (2020) (slip op., at 7); 

see ibid. (explaining that if a “later-in-time filing would 

have ‘constituted an abuse of the writ’” under “‘our prior

habeas corpus cases,’” “it is successive; if not, likely not”).

The Fifth Circuit concluded otherwise, finding itself bound 

by Circuit precedent holding that “ ‘Brady claims raised in 

second-in-time habeas petitions are successive regardless of

whether the petitioner knew about the alleged suppression 

when he filed his first habeas petition.’” 8 F. 4th, at 392 

(quoting In re Will, 970 F. 3d 536, 540 (CA5 2020)).

As I have previously explained, the Fifth Circuit’s “illogical rule” defining “second or successive” in this fashion “rewards prosecutors who successfully conceal their Brady and 

Napue violations until after an inmate has sought relief

from his convictions on other grounds.” Bernard v. United 

States, 592 U. S. ___, ___ (2020) (dissenting opinion) (slip 

op., at 4). “Under this rule, prosecutors can run out the

clock and escape any responsibility for all but the most extreme violations.” Id., at ___ (slip op., at 5). 

The Fifth Circuit’s rule contravenes this Court’s precedent. Panetti v. Quarterman, 551 U. S. 930 (2007), holds

that a petition bringing a claim that was not ripe when the 

petitioner filed his first-in-time petition is not “second or 

successive.” That reasoning “applies with full force to 

Brady claims” like Storey’s, where the issue is that the 

State unlawfully failed to disclose evidence favorable to the 
 

 

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Statement of SOTOMAYOR, J. 

defense, and the petitioner is not aware of that evidence until after the first-in-time petition. Bernard, 592 U. S., at 

___–___ (SOTOMAYOR, J., dissenting) (slip op., at 4–5). By

ignoring Panetti’s logic, the Fifth Circuit’s rule improperly

“produce[s] troublesome results, create[s] procedural anomalies, and close[s] our doors to a class of habeas petitioners 

seeking review without any clear indication that such was 

Congress’ intent.” Panetti, 551 U. S., at 946 (internal quotation marks omitted).*

The posture of Storey’s case renders it a poor fit for this

Court’s review. His case, however, illustrates the injustice 

that can flow from an overbroad view, unsupported by precedent, of what constitutes a “second or successive” habeas 

petition. Prosecutors not only failed to disclose Cherry’s 

parents’ unwavering desire that Storey not be sentenced to

death, but also misled the jury in summation to successfully 

secure a death sentence. The State then ran out the clock 

by failing to disclose its malfeasance throughout Storey’s 

initial postconviction proceedings. When Storey later

sought postconviction relief based on the facts the State had 

misrepresented, the sole court to decide the merits of his 

misconduct claims found him entitled to receive a new punishment trial. But under the Fifth Circuit’s irrational rule, 

it was too late: Storey should have raised these claims in 

his first federal habeas petition, regardless of the extent of

the State’s malfeasance or whether he could have known of 

it at that time. As a result, Storey now faces the possibility

of execution without resolution of his claims. I trust that 

—————— 

*At least three other Courts of Appeals have adopted the same erroneous interpretation as the Fifth Circuit. See In re Wogenstahl, 902 F. 3d 

621, 626–628 (CA6 2018) (per curiam); Brown v. Muniz, 889 F. 3d 661, 

668–671 (CA9 2018); Tompkins v. Secretary, Dept. of Corrections, 557 

F. 3d 1257, 1259–1260 (CA11 2009) (per curiam). But see Scott v. United 

States, 890 F. 3d 1239, 1254–1258 (CA11 2018) (disagreeing with Tompkins at length but following it as binding); In re Jackson, 12 F. 4th 604, 

611–616 (CA6 2021) (Moore, J., concurring) (opining that Wogenstahl 

was wrongly decided). 
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Statement of SOTOMAYOR, J. 

other federal courts will pay closer heed to Panetti and Banister when they confront this important issue.