1 Cite as: 597 U. S. ____ (2022)

Statement of S OTOMAYOR , J. 

## SUPREME COURT OF THE UNITED STATES

PAUL DAVID STOREY v. BOBBY LUMPKIN, DIREC

TOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITU

TIONS 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 J USTICE S OTOMAYOR respecting the denial of certiorari.
The facts of this case offe r a cautionary tale for those Courts of Appeals that have ye t to define what constitutes a restricted “second or successive habeas corpus applica

tion,” 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 individ

uals of an opportunity to raise serious claims of prosecuto

rial malfeasance in federal habeas proceedings. After a jury convicted petitioner Paul David Storey of murdering Jonas Cherry in the course of a robbery, prosecu

tors 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 eve

ryone who loved him believe the death penalty is appropri

ate.” Ex parte Storey , 584 S. W. 3d 437, 447 (Tex. Crim. App. 2019) (Walker, J., dissenting). The jury sentenced Sto

rey to death. In December 2016, eight years after trial and months be

fore Storey’s scheduled execut ion, Storey’s counsel learnedthat the prosecutor’s assertion during the punishmentphase closing arguments was false. In truth, Cherry’s par

ents vigorously and consistently opposed the State’s choice2 STOREY v. LUMPKIN

Statement of S OTOMAYOR , J. to seek the death penalty for Storey. Cherry’s parents com

municated their views to the State’s prosecutors before trial, including the prosecutor who told the jury otherwise in closing. But the State neve r 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, Stor ey sought postconviction re

lief 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 applica

tion for postconviction relief, Texas law required Storey to establish that the factual basis for his new claims was una

vailable 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 recom

mended that Storey receive a new punishment trial. A fractured Texas Court of Criminal Appeals reversed. The majority held that Storey could not bring his miscon

duct claims because he had failed to show that those claims’ factual basis was not previously available through the ex

ercise of reasonable diligence. The majority reached this conclusion in part because although Storey’s prior postcon

viction 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 Fifth3 Cite as: 597 U. S. ____ (2022)

Statement of S OTOMAYOR , J. Circuit ultimately denied on federal procedural grounds. See 8 F. 4th 382 (2021). The State argued that Storey’s re

quest 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 explaine d, the Fifth Circuit’s “illogi

cal rule” defining “second or successive” in this fashion “re

wards 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 ex

treme violations.” Id. , at ___ (slip op., at 5). The Fifth Circuit’s rule contravenes this Court’s prece

dent. 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-tim e 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 the4 STOREY v. LUMPKIN

Statement of S OTOMAYOR , J. defense, and the petitioner is not aware of that evidence un

til after the first-in-time petition. Bernard , 592 U. S., at ___–___ (S OTOMAYOR , 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 anom

alies, 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 quo

tation marks omitted).* The posture of Storey’s case renders it a poor fit for this Court’s review. His case, howe ver, illustrates the injustice that can flow from an overbr oad view, unsupported by prec

edent, 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 pun

ishment 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 wh ether 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 errone

ous 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 Tomp

kins 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).5 Cite as: 597 U. S. ____ (2022)

Statement of S OTOMAYOR , J. other federal courts will pay closer heed to Panetti and Ban

ister when they confront this important issue.