NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Nos. 19-1489 & 19 -1667

________________ RICHARD BALTER, Appellant

v. UNITED STATES OF AMERICA
Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 18- cv -16681) District Judge: Honorable Jerome B. Simandle
Argued April 28, 2021 Before: SMITH, Chief Judge , PHIPPS and ROTH, Circuit Judges (Opinion filed: May 28, 2021) Richard Balter Petersburg FCI Medium P.O. Box 1000 Petersburg, VA 23804 Appellant Pro Se Harrison P. Graydon ( ARGUED ) Duquesne University School of Law Federal Litigation Clinic 912-914 Fifth Avenue Pittsburgh, PA 15219 Adrian N. Roe2 428 Boulevard of the Allies First Floor Pittsburgh, PA 15219 Counsel for Court Appointed Amicus Curiae Steven G. Sanders ( ARGUED ) Mark E. Coyne Office of United States Attorney General 970 Broad Street Room 700 Newark, NJ 07102 Counsel for Appellee

OPINION *
ROTH, Circuit Judge
Richard Balter appeals the dismissal of his 8 U. S. C.§ 2255 Motion seeking to vacate his convictions for murder for hire and wire fraud. Because we agree with the District Court that his Motion was second or successive, we will affirm.
I In 1994, Balter was sentenced to life imprisonment for the murder for hire of Robert Cohen to collect on a $600,000 insurance policy on Cohen’s life. Cohen made Balter the beneficiary of the policy, hoping to refortify their business relationship.

* This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not constitute binding precedent.3 Cohen’s company, Uneeda, owed approximately $600,000 to Balter’s company, NP P

. Balter claimed that this debt was undermining NPP’s financial stability. 1 In 1997, Balter filed a pro se § 2255 Motion, alleging ineffective assistance of counsel. Th e motion was denied on the merits. In 2007, in response to a 2005 request, the government returned two boxes of documents taken from NPP’s warehouse before trial. Because Balter had become blind due to macular degeneration, 2 he recruited other inmates to help him review the documents. Some of the documents allegedly show that the insurance policy was Cohen’s idea, that Balter and Cohen had worked out a payment plan, that NPP was financially stable, and that Balter would have acquired Uneeda if Cohen had lived. Balter alleges that these documents undermined the government’s financial

- motive theory and were not included in the files counsel was permitted to inspect before trial.
In 201 8 , Balter filed another pro se § 2255 Motion , raising a Brady claim b ased on the documents. Before filing a second or successive § 2255 motion, a prisoner must

“ move in the appro p riate court of appeals for an order authorizing the district court to consider the [§ 2255 motion]

. ” 3 Under § 2255(h) (1) , a successive motion is barred unless it, inter alia , “contain[s] . . . newly discovered evidence that

. . . would be sufficient to

1 See generally United States v. Balter , 91 F.3d 427 (3d Cir. 1996). 2 See generally Balter v. United States , No. 09

- 1409, 2014 WL 1365905 (M.D. Pa. Apr. 7, 2014). 3 28 U.S.C. §§ 2244(b)(3)(A), 2255(h).4 e stablish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense. ” 4 The government argued that Balter’s m otion was second or successive and moved either to dismiss it or to transfer it to this Cou rt so that Balter could seek permission to file it

. On February 27, 2019, th e District Court did both. It granted the government’s Motion to Dismiss Balter’s habeas motion “without prejudice” and at the same time transferred Balter’s m otion to this Court ( Case No. 19

- 1489), pursuant to 28 U.S.C. §
16 3 1. The government responded to the transfer, arguing that Balter’s motion did not meet the gatekeeping requirements of 28 U

. S

. C

. § 2255(h)(1). On March 26, 2019, Balte r moved to dismiss what he called the “appeal” in No. 19

- 1489, insisting that he did not need our Court’s permission to file his motion because it was not second or successive. We granted th e dismissal of No. 19

- 1489 on April 4. Meanwhile, o n March 29, Balter appealed th e District Court’s Order of February 27. Th at appeal is designated C ase No. 19

- 1667

. Balter again challeng ed the District Court’s conclusion that his habeas m otion was second or successive. On September 4, 2020, a Motions Panel of t h is Court directe d that counsel be appointed as amicus curiae to assist Balter. In order to properly examine all issues before us, on April 26, 2021, we reopened the appeal in No. 19

- 1489. Balter had had sent a letter to the Court, stating that he had no objection to the reopening of No. 19

- 1489.
II

4 Id. § 2255(h) (1)

.5 A . As an initial matter, we have jurisdictio n over Case No. 19

- 1667. Ordinarily, a district court should dismiss a second or successive § 2255 motion for lack of jurisdiction. 5 We have suggested, however, that in some circumstances a district court may transfer the motion to this Court as though it were a motion seeking permission to file a second or successive motion. 6 Al though t he government moved for dismissal or a transfer , t he District Court did both, dismissing the case “without prejudice” and transferring it. Because the District Court dismissed the case , it could not also transfer it. In order to resolve this conflict of dispositions, w e will interpret the action taken by the District Court to be a dismissal. Moreover, it is evident from Balter”s pro se brie f that he wishes to stand on his petition as presented

. T he o rder of dismissal by the District Court

was , therefore, final and appealable. 7
B . Balter argues that § 2255(h) should not apply to Brady claims under the Supreme Court’s decision in Panetti v. Quarterman

. 8 Panetti , in turn, relied on Stewart v.
Martinez

- Villareal

. 9 In Stewart , a federal court denied as unripe a state prisoner’s “ Ford

5 28 U.S.C. § 2244(b)(4). 6 Robinson v. Johnson , 313 F.3d 128, 139 (3d Cir. 2002 ) (“ W hen a second or successive habeas petition is erroneously filed in a district c ourt without the permission of a court of appeals, the district court ’ s only option is to dismiss the petition or transfer it to the court of appeals pursuant to 28 U.S.C. § 1631 .” (emphasis added)). 7 28 U.S.C. § 2253(a) ; s ee also Goldblum v. Klem , 510 F.3d 204, 213 (3d Cir. 2007 ) (holding dismissal without prejudice is final and appealable where plaintiff stands on complaint )

. 8 551 U.S. 930 (2007). 9 523 U.S. 637 (1998).6 claim , ” a claim that a prisoner is not competent to be executed . The reason for the denial

was be cause Arizona had not yet issued the death warrant

. The court denied the prisoner’s other claims on the merits. When Arizona did issue the death warrant, the state court denied the Ford claim on the merits. The prisoner filed a second

- in

- time Ford claim in federal court. T he Supreme Court held that , because the prisoner did “ not receive an adjudication of his [ Ford ] claim” when it was dismissed as unripe, “[t] here was only one application for habeas relief ” and the claim was not second or successive. 10
In Panetti , t he Court extended Stewart to a case in which a prisoner failed to file a Ford claim in his initial petition. 11 Balter argues that if the government continue s to suppress evidence after trial, there could be Brady claims that, like Ford claims, cannot be brought in an initial § 2255 Motion. E very circuit to address this issue , 12 however, has held that Stewart and Panetti are limited to “ the particular circumst ances presented by a Ford claim

. ” 13 Ford claims, unlike Brady claims, usually do not ripe n until after an initial § 2255 motion is brought. Moreover, § 2255(h)(1) already provides an exception for claims, like Balter’s proffered Brady claim s , based on (1) “newly discovered evidence” that (2) “ would be sufficient to

10 Stewart , 523 U.S. at 644

– 45. 11 Panetti , 551 U.S. at 945. 12 See Blackman v. Davis , 909 F.3d 772, 778

– 79 (5th Cir. 2018); In re Wogenstahl , 902 F.3d 621, 627

– 28 (6th Cir. 2018); Brown v. Muniz , 889 F.3d 661, 674 (9th Cir. 2018); In re Pickard , 681 F.3d 1201, 1204

– 05 (10th Cir. 2012); Tompkins v. Sec’y, Dep’t of Corr. , 557 F.3d 1257, 1260 (11th Cir. 2009); Evans v. Smith , 220 F.3d 306, 322

– 23 (4th Cir. 2000). But see Scott v. United States , 890 F.3d 1239 (11th Cir. 2018) ; United States v. Lope z , 577 F.3d 1053 (9th Cir. 2009) ; Douglas v. Workman , 560 F.3d 1156 (10th Cir. 2009)

. 13 Id.7 establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense. ” 14 Balter argues that applying § 2255(h)(1)’s clear

- and

- convincing

- evidence standard , rather than Brad y ’s more lenient materiality standard, to Brady claims that could not be brought in an initial § 2255 motion is unfair

. B ut b ecause § 2255(h)(1) applies only to claims based on “newly discovered evidence,” Congress implicitly recognized that some claims that could not be brought sooner must
meet that higher standard. 15 In any event, we need not decide in this case whether § 2255(h) appl ies to the type of hypothetical Brady claim identified by Balter. Even if we were to construe Panetti broadly to apply to Brady claim s that could not have been brought in an initial motion, Balter has not shown that he could not brin g his Brady claim in his initial § 2255 motion in 1997. To allege that a claim could not have been brought sooner because of newly discovered evidence, a prisoner must show that the evidence “ objectively could not have been discovered [earlier] through the exercise of due diligence .” 16 The due diligence requirement “‘ cannot be collapsed ’ into ‘ the merits of [the] Brady [claim] ’ itself ,” and

“ where the record demonstrates that the defendant or defense counsel was aware of the

14 28 U.S.C. § 2255(h )(1)

. 15 Cf. Felker v. Turpin , 518 U.S. 651, 664 (1996) (upholding AEDPA’s gatekeeping standards); In re Dorsainvil , 119 F.3d 245, 251 (3d Cir. 1997) (explaining that § 2255 is not inadequate “merely because [a prisoner] is unable to meet the stringent gatekeeping requirements of” § 2255(h) ). 16 E.g. , In re Will , 970 F.3d 536, 542 (5th Cir. 2020).8 potential Brady mat erial but failed to pursue investigation of that ultimate claim,” he has not been diligent. 17
T he crux of Balter’s claim is a n agreement between himself and Cohen. He obviously knew that that agreement existed. He also knew that the government seized
t he agreement and other documents from his business before trial. He told counsel that “the [g]overnment took all of his business records from [his business’] warehouse, and that within that mountain of papers should be proof that the [g]overnment’s theory of the case was wrong.” 18 He was not diligent in recovering the agreement. Although Balter vaguely alleges that counsel “was unable to locate [the documents] when examining the boxes of records in the custody of the [g]overnment” because they were “del iberately hidden so that inspection by counsel was not reasonably calculated to turn them up,” he provides no details about whether he requested the documents from the government, how counsel otherwise came to inspect the boxes, or whether the documents we re missing from the boxes or merely tucked between other documents (as he alleges they were in 2007). Nor does he explain why he did not include this claim in his initial § 2255 motion and waited over ten years to ask the government what happened to the m issing documents.

17 Bracey v. Superintendent Rockview SCI , 986 F .3d 274, 2 93

– 94 (3d Cir. 2021) (alterations in original) (quoting Johnson v. Dretke , 442 F.3d 901, 910 (5th Cir. 2006)). 18 Mem. in Support Mot. Vacate at 3, Dist. Ct. Doc. No. 1

- 1.9 Because Balter has not shown that he was unable to present his claim earlier,
Panetti could not possibly apply here. Accordingly, Balter’s Motion is second or successive, and he was required to seek our permission before filing.
III For the above reasons, w e will affirm the Judgment of Dismissal of the District
Court

.