[00:00:02] Speaker 00: Case number 14-3027, Henry Byron Lamont McDade, also known as Barry Petitioner. [00:00:08] Speaker 00: Ms. [00:00:08] Speaker 00: Goldstein for the amicus curae, Mr. Perez for the respondent. [00:00:13] Speaker 04: Good morning. [00:00:14] Speaker 04: Good morning. [00:00:15] Speaker 04: My name is Stephen Goldblatt. [00:00:17] Speaker 04: I'm a professor at Georgetown University Law Center. [00:00:19] Speaker 04: And I was appointed in this case to be an amicus juror in support of Mr. McDade. [00:00:23] Speaker 04: With the court's permission, argument today will be presented by Jennifer S. Goldstein, a third-year law student at the law center who is appearing in conformity with the rules of this court. [00:00:32] Speaker 04: Thank you very much. [00:00:33] Speaker 04: Thank you. [00:00:42] Speaker 05: Good morning. [00:00:43] Speaker 01: Good morning. [00:00:45] Speaker 01: Good morning, Your Honors, and may it please the Court. [00:00:48] Speaker 01: Amicus respectfully contends, although other courts of appeal have held otherwise, that Section 2255 of EDPA cannot be read literally to apply to Brady claims, because to do so would bar meritorious Brady sentencing claims and some Brady trial claims. [00:01:04] Speaker 01: from review as long as the suppressed evidence remains suppressed until after the petitioner's first 2255 motion. [00:01:10] Speaker 01: The Supreme Court in Panetti and Magwood instructed against reading EDPA literally to foreclose review of meritorious claims without a clear expression of congressional intent. [00:01:20] Speaker 01: Because Congress expressed no intent to foreclose review of certain Brady claims, amicus respectfully request that this court transfer McDade's second petition back to the district court for review because this claim is not successive. [00:01:33] Speaker 01: First, Amicus acknowledges that no other court of appeal has exempted Brady claims from the successive bar. [00:01:39] Speaker 01: However, those court's opinions are not instructive for this court because many of them were decided before Panetti or Magwood. [00:01:45] Speaker 02: So can I ask you one question? [00:01:46] Speaker 02: So is your proposed rule that Brady claims is a category, all Brady claims just fall outside the second or successive apparatus? [00:01:54] Speaker 01: Yes. [00:01:55] Speaker 02: So what would happen in a situation, for example, in which the government disclosed the evidence before the first 2255, and for some reason, the Brady claim wasn't raised. [00:02:06] Speaker 02: So it was always there for the first one. [00:02:08] Speaker 02: And then in the second one, the Brady claim is raised. [00:02:12] Speaker 01: So when the petitioner is on notice that there is Brady material potentially available to them, they are under an obligation to raise those claims in the first petition. [00:02:20] Speaker 01: So petitioner here, or I'm sorry, amicus here maintains that it's precisely because many Brady claims the evidence to provide the basis for Brady claim are suppressed past the time at which the petitioner files the first petition that Brady claims as a whole cannot be subject to the 2255 bar. [00:02:35] Speaker 02: But what would happen in that situation for the second one? [00:02:37] Speaker 02: So it's undoubtedly a second. [00:02:41] Speaker 02: Petition in that the first petition was filed and dealt with the Brady claim was available at the first time It wasn't it wasn't raised for whatever reason Brady claims raised in the second one Would we just say that we'll under your rule that we just go to we just go to the merits of Brady claim because it's a Brady claim [00:02:57] Speaker 01: Absolutely not. [00:02:58] Speaker 01: The district court still maintains the ability to, before reaching the merits of the claim, to assess whether that claim falls under procedural default rules and abuses the writ and can dismiss that claim at that time. [00:03:10] Speaker 01: The only point at which the district court would reach the merits of the Brady claim is if it would survive abuse of the writ. [00:03:15] Speaker 01: So in that case, the claim would likely be procedurally defaulted. [00:03:19] Speaker 02: So your view of the way the statute works is that abuse of the writ is preserved. [00:03:23] Speaker 02: So every time, no matter if it's a Brady claim or not, every time there's any kind of claim raised, if it gets past the second or successive, or if it falls outside second or successive, district courts as a rule just apply abuse of the writ. [00:03:36] Speaker 01: So we maintain that when claims as a whole, such as court claims, survive abuse of the writ, then they're not in, the Congress did not intend to subject them to the successive bar unless they expressed [00:03:47] Speaker 01: They're clearly intent to do so under this statute. [00:03:50] Speaker 01: So when claims as a whole tend to survive and they're exempt from the successive bar, the district court, again, would not go straight to the merits of the claim. [00:03:58] Speaker 01: They would, again, immediately review for abuse of the writ and procedural default before considering the merits. [00:04:04] Speaker 02: And abuse of the writ determines whether the filing is second or successive? [00:04:09] Speaker 01: Not to each individual claim, but when certain claims, in narrow circumstances, tend to survive abuse of the writ, unless there's a clear expression of congressional intent to subject them to the successive bar. [00:04:19] Speaker 01: We maintain that the court's precedent in Panetti and Magwood counsel against reading EDPA literally to foreclose review claims that would have survived abuse of the writ by applying the successive bar. [00:04:29] Speaker 05: Would it be unconstitutional then, in your view, to apply this statute as written to Brady claims? [00:04:34] Speaker 01: So we maintain that some constitutional issues are raised when meritorious claims are foreclosed from review. [00:04:44] Speaker 01: But here we really think that this court can resolve this from a pure statutory interpretation standpoint, in that if Congress didn't clearly enunciate intent to subject Brady claims to the successive bar, this court should not read Ed, but literally to do so when that would raise certain issues. [00:04:59] Speaker 05: Well, how serious is the constitutional issue, though? [00:05:02] Speaker 05: Because doesn't that really guide us in whether we [00:05:07] Speaker 05: I think there's a problem with just applying the statute as written, because I think you acknowledge, I think it's appropriate that as written, the statute would seem to cover this, because it actually does map well onto the idea of newly discovered evidence that you didn't have before, and then meeting some heightened standard. [00:05:25] Speaker 05: The problem, as I understand it, in your view, is the heightened standard and the delta between a Brady claim and that heightened standard, and also the sentencing aspect of this, right? [00:05:36] Speaker 01: Amicus actually maintains that the newly discovered evidence standard is not a clear expression of congressional intent to subject Brady claims to the successive bar, because as the court noted in Aguars, there are different standards that apply to newly discovered evidence claims, which can routinely be raised by the first petition, as opposed to Brady claims, because the court noted that if the same standard applied to both, then there would be no special significance to the prosecutor's duty to disclose any exculpatory or impeaching evidence. [00:06:01] Speaker 01: So it's that precise duty that we want to protect [00:06:04] Speaker 01: in reading the statute narrowly, because otherwise all that needs to happen is the suppressed evidence must remain suppressed until after the first petition, and then the petitioner is essentially out of luck. [00:06:15] Speaker 01: And we don't want to read ed put in a manner that would, or we don't believe Congress intended ed put to be read in a manner to protect prosecutorial misconduct from review. [00:06:24] Speaker 01: So that again speaks to one reason why we don't believe Congress expressed a clear intent to include Brady claims in the successive bar. [00:06:31] Speaker 05: Another reason... I guess what I'm asking is, is there another way to get to the result you seek, which is to say Brady claims do fall within this statute, but there might be a constitutional problem with applying the heightened standard of [00:06:50] Speaker 05: evidence that you would need to show successful claim under the statute, and therefore we should construe the statute to avoid that constitutional problem, not by eliminating Brady claims from the statute, but by relaxing the standard in those cases that [00:07:06] Speaker 05: are Brady claims under the statute. [00:07:08] Speaker 05: You understand what I'm saying? [00:07:09] Speaker 01: Yes, certainly that speaks to our second argument, which is the fact that this successive bar, wholesale bar is consideration of Brady sentencing claims counseled toward, you know, just ascertaining whether the petitioner in fact alleges a Brady claim and at that point can, you know, send back to the district court for more, you know, for the application of abuse of the right and a merits-based analysis if they get past that. [00:07:31] Speaker 05: On the merits of the Brady claim here, it does not seem like there's [00:07:36] Speaker 05: massive inconsistency in Webster's testimony here. [00:07:40] Speaker 05: It does describe, in both trials it seemed to me, describe a similar role. [00:07:46] Speaker 05: So can you respond to, and maybe that's an easy way to resolve this case, is that we don't need to resolve what the standard should be for Brady claims that come within this statute because there's really not anything here in terms of a Brady claim. [00:08:02] Speaker 01: So I think this respectfully maintains that there is in fact a Brady claim here. [00:08:06] Speaker 01: The fact that Webster maintained in Great McDade's trial that he essentially took over her operations and that she didn't sell drugs anymore. [00:08:13] Speaker 01: And then in the Gray trial said that she technically sold the drugs and just gave the drugs out to distribute. [00:08:21] Speaker 01: It conflicts with this court's precedent in applying the sentencing enhancement because in order to be found [00:08:27] Speaker 01: In order to be a lieutenant, as the government maintained McDade was, you need to do more than just simply distribute drugs. [00:08:32] Speaker 01: There has to be a measure of control placed over the people below you. [00:08:37] Speaker 01: And in this sense, we think that Webster's testimony shows clearly that the sentence enhancement [00:08:44] Speaker 01: may not have been warranted based on the facts. [00:08:47] Speaker 01: And if it were disclosed, McDade could have impeached her or at least introduced that evidence to mitigate her damaging testimony, which even the Court of Appeals acknowledged was a basis for finding the sentencing enhancement. [00:08:58] Speaker 01: So in that sense, we do think the Brady claim is there. [00:09:02] Speaker 01: And again, this court need only find that McDade did in fact allege a Brady claim in order to pass that hurdle. [00:09:08] Speaker 01: And here the government and amicus agree that McDade did in fact allege a Brady claim. [00:09:15] Speaker 05: All right, I know it's a wedge. [00:09:17] Speaker 05: I'm just saying, does it even, my question was more, does it rise to the level of showing some kind of inconsistency in the testimony? [00:09:28] Speaker 05: And you answered that, but it does seem like it's maybe shades rather than inconsistent. [00:09:34] Speaker 01: Certainly honor and in this court could find that, however, again, the factual underpinnings of the Brady claim and the level to which it meets the merits analysis is really a place where the district court would be best suited to analyze the claim because they presided over the trials and they have a better familiarity with the full record. [00:09:50] Speaker 01: So again, here, you know, we don't want the Court of Appeals to get into the business of delving into each individual fact and deciding [00:09:56] Speaker 01: deciding the merits to that degree, the Court of Appeals job is really to see whether a Brady claim is alleged or if petitioners just alleged facts and then slap the label of Brady on it. [00:10:06] Speaker 01: And here, there's no dispute that there was a Brady claim alleged. [00:10:10] Speaker 02: Where does the prima facie part of the statute fit in? [00:10:15] Speaker 01: So we maintain that the Court of Appeals merely need to decide that McDade alleges a prima facie brady claim to allow the district court to consider the merits on a deeper level. [00:10:27] Speaker 01: And so here again, based on the reasons I just articulated, both sides maintain that [00:10:32] Speaker 01: he establishes a prima facie claim. [00:10:35] Speaker 01: And it's just a question of the merits at this point to whether the discrepancy, McDade alleges, rises to the level of material such that the government had an obligation to disclose. [00:10:46] Speaker 01: And here, that's, again, amicus contensis. [00:10:49] Speaker 01: It's really a matter for the district court to evaluate. [00:10:51] Speaker 02: And what does that mean? [00:10:52] Speaker 02: So the court of appeals at least has a responsibility, even under your view, to assess whether there's a prima facie or Brady claim made. [00:10:58] Speaker 01: If this court finds that Brady claims as a whole are successive, then yes, there would need to be an initial showing of a prima facie Brady claim. [00:11:05] Speaker 01: However, if you're willing to buy into Amicus's argument that Brady claims are accepted and only need to show that he alleges a Brady claim, which both sides concede. [00:11:15] Speaker 05: Thank you. [00:11:15] Speaker 05: Thank you. [00:11:16] Speaker 05: We'll give you time for rebuttal. [00:11:17] Speaker 05: Thank you very much. [00:11:26] Speaker 00: I tend to agree with Judge Kavanaugh's assertion that the easiest way to resolve this case is to find that there is no Brady Claim, there's not even a primary facial Brady Claim on these facts. [00:11:43] Speaker 03: That's not the easiest way. [00:11:45] Speaker 03: It's the easiest way to say it was untimely. [00:11:49] Speaker 00: That's even easier, yes, Your Honor. [00:11:52] Speaker 00: However, every circuit agrees that non-material Brady claims are subject to 2255 H1's gatekeeper requirement. [00:12:02] Speaker 00: Because this is a non-material Brady claim, and of course we think it's a Brady claim that's untimely, that's our first argument to be sure we're not abandoning it. [00:12:10] Speaker 00: But to pick up on Amiki's argument here today, [00:12:13] Speaker 00: Because this is a non-material Brady claim, that resolves the issue, or the harder issue, as to what that Lopez addressed in that evidence. [00:12:22] Speaker 02: So non-material Brady claims, that evokes the Ninth Circuit's approach. [00:12:27] Speaker 02: Because the Ninth Circuit has said that they don't need to resolve certain issues as long as they can stay at the outset. [00:12:33] Speaker 02: Brady claim doesn't get past Brady materiality. [00:12:37] Speaker 02: And if it doesn't get past Brady materiality, then it's not second or successive. [00:12:42] Speaker 02: What seems odd to me about that is that you're just, you're assessing whether there's a good Brady claim in order to determine whether the Brady claim can be brought. [00:12:50] Speaker 00: Well, yeah, it is kind of backwards. [00:12:52] Speaker 00: However, I think what the Ninth Circle was saying in Lopez is that if you look at the abuse of the writ standard that came before ADEPA in 1996, [00:13:03] Speaker 00: You had to essentially determine the merits there, too. [00:13:06] Speaker 00: You had to show cause and end prejudice. [00:13:08] Speaker 00: And prejudice decides on whether or not it turns on a material pretty plain. [00:13:12] Speaker 00: So the court was saying, even under the abusive writ doctrine, and before a death butt or a debutt, [00:13:20] Speaker 00: You cannot, a non-material Brady claim cannot go forward as a second or successive motion. [00:13:25] Speaker 00: And what the court was saying is, we don't know what the audit limits of 2255-821's gatekeeper requirement is, but we know at the very least that it would not, at the very least, non-material Brady claims are subject to 2255 steps. [00:13:40] Speaker 02: But how does, I just, I don't quite follow how that squares with the words of the statute. [00:13:45] Speaker 02: Where is that? [00:13:48] Speaker 02: Where in the statute do you get the assessment of whether the Brady claim passes Brady materiality? [00:13:55] Speaker 00: What word is in the statute? [00:13:56] Speaker 00: 2255. [00:13:57] Speaker 00: To be sure, our first argument is we think that the statute is clear that all Brady claims material and non-material falls under 2255H1. [00:14:05] Speaker 02: To be sure, that's our first argument. [00:14:07] Speaker 02: Right. [00:14:07] Speaker 00: But the fallback argument is that at the very least, non-material Brady claims fall under that. [00:14:12] Speaker 00: And I don't think that Lopez was particularly looking at the statute as the [00:14:17] Speaker 00: it was looking at the purpose of the statute. [00:14:20] Speaker 00: In other words, what Lopez said is everyone agrees that ADEPA gatekeeper requirement is not, it did not expand the abuse of grit doctrine, right? [00:14:30] Speaker 00: It made it narrow. [00:14:30] Speaker 00: Everyone agrees, of course, don't necessarily agree how much narrow, but everyone agrees that it did not expand. [00:14:36] Speaker 00: So if it does not, just as a matter of logic, if it does not meet the abuse of grit doctrine, [00:14:43] Speaker 00: it doesn't mean 2255-821 gatekeeper requirements. [00:14:47] Speaker 00: I don't know that the court was looking anywhere in particular at the 2255-821 language. [00:14:51] Speaker 05: The language of the statute, right? [00:14:53] Speaker 00: It was just looking at the purpose of it. [00:14:54] Speaker 05: Well, it was also looking at potential constitutional problems, right? [00:15:00] Speaker 05: And I guess my question for you is, does the government think there's a constitutional problem with requiring Brady claims to meet [00:15:11] Speaker 05: that fall within this statute that are second or successive, in other words, to meet the heightened standard of showing by clear and convincing evidence that no reasonable fact finder would have found the movement guilty of the offense. [00:15:24] Speaker 00: We don't, Your Honor. [00:15:25] Speaker 00: Well, first, we don't think Your Honor needs or needs to decide the issue in the first place because we think it's not a totally ready claim. [00:15:31] Speaker 00: However, if the court disagrees with that, we don't. [00:15:33] Speaker 00: I think in 1996, the brokerage that we cite to the Supreme Court, the Supreme Court very clearly says that the added, quote, the added restrictions which the act places on second heaviest petitions are well within the compass of this evolution process. [00:15:51] Speaker 00: And what they were talking about is the evolution process [00:15:54] Speaker 00: limiting second or successive motions. [00:15:58] Speaker 05: But if you had no opportunity to discover the Brady claim before and you're the defendant and you have to go in with this second habeas motion, you've already had one, but you've never had an opportunity to make the Brady claim before and you would meet the ordinary Brady standard and thus have your conviction overturned. [00:16:22] Speaker 05: You say that that person gets no relief [00:16:24] Speaker 00: We think that under the statute, very clear. [00:16:27] Speaker 00: I don't think we can assume that Congress did not envision that circumstance. [00:16:30] Speaker 05: But nevertheless, what Congress said is that... Now, I'm getting to the Constitution, though. [00:16:35] Speaker 00: Right. [00:16:35] Speaker 05: Do you think the due process clause would allow that, in essence, that a Brady claim, a successful Brady claim, nonetheless, that you could not have discovered before, with all the diligence in the world, a successful Brady claim, nonetheless, [00:16:55] Speaker 05: is not going to be heard by the federal courts because of the statutory bar. [00:17:01] Speaker 00: I think if the court reads Felford, the Supreme Court decision in Felford, where it says that we hold to date that the added restrictions on second motions, heaviest motions, does not constitute a suspension of the writ, I think, yes, the court is saying these added restrictions are not unconstitutional. [00:17:19] Speaker 02: That might be true for a lot of claims, because I think it's generally acknowledged that a litigant by conduct can relinquish the opportunity to have a court pronounce on the merits of even a meritorious constitutional claim. [00:17:36] Speaker 02: But on Brady in particular, I mean, I guess then what you're saying is Congress could pass a statute that said from here on forward, every Brady claim, the constitutional standard the Supreme Court laid down on Brady is no longer binding. [00:17:49] Speaker 02: Every Brady claim the defendant has to show by clear and convincing evidence that the verdict definitely was wrong. [00:17:54] Speaker 00: No, that's not what we're saying. [00:17:56] Speaker 00: We're saying we respect the second habeas petition. [00:17:59] Speaker 00: Congress controls that jurisdiction of federal court. [00:18:02] Speaker 00: So the court, Congress can enact a higher standard for Brady claims. [00:18:06] Speaker 00: Of course it can't change the standard of Brady. [00:18:08] Speaker 02: But it controls the jurisdiction of all federal cases too. [00:18:11] Speaker 00: So for federal court cases, why couldn't Congress do that? [00:18:16] Speaker 00: But at the same time, [00:18:18] Speaker 00: Supreme Court has already laid down the standard for Brady Claims in the first instance on direct appeal. [00:18:23] Speaker 00: We're not dealing with that here. [00:18:24] Speaker 00: We're dealing with a second habeas petition. [00:18:26] Speaker 00: And Felker says that that is within that gatekeeping. [00:18:30] Speaker 02: But I think the point of Judge Kavanaugh's question is that whether it's a first habeas petition, second, third, fourth, fifth, and just to make it truly federal, just say 2255 instead of habeas. [00:18:39] Speaker 02: So we're dealing exclusively with federal cases in which Congress sets the parameters of federal jurisdiction. [00:18:45] Speaker 02: By hypothesis, [00:18:47] Speaker 02: the government will have withheld the evidence until the time of the instant habeas petition, suppose it's the fifth one. [00:18:53] Speaker 02: So the defendant has no opportunity whatsoever to know even the existence of a Brady claim. [00:18:58] Speaker 00: First of all, that's not the case here. [00:19:01] Speaker 00: So we're really dealing with a hypothetical. [00:19:03] Speaker 02: I'll stipulate that we're dealing with a hypothetical, but I guess the hypothetical informs the way we're supposed to read the statute. [00:19:09] Speaker 02: And if the hypothetical is that the government withholds the evidence until the fifth habeas petition, and then now the defendant knows, the question is, can Congress constitutionally say, even though you never had an opportunity to know about your Brady claim before, you have to do more than meet the normal Brady standard. [00:19:25] Speaker 02: You have to show by clear and convincing evidence that the verdict would have been different. [00:19:28] Speaker 00: I don't think we should assume that Congress did not envision that circumstance. [00:19:39] Speaker 00: To this extent, Amikis or anyone else has a problem with that hypothetical which [00:19:45] Speaker 00: it's not the case here, then they can petition Congress to change it. [00:19:48] Speaker 02: So does the government then have an incentive, under the way the statute's written, under your view, just to withhold Brady evidence until after the first case? [00:19:55] Speaker 00: Of course not. [00:19:55] Speaker 00: We have to go all the way back. [00:19:56] Speaker 00: It's obviously to disclose Brady claims. [00:20:03] Speaker 00: But again, because that's not the case, it is really hard to deal with hypotheticals, and perhaps if there was a blatant violation of Brady claims, perhaps the court can deal with that issue. [00:20:13] Speaker 05: Well, isn't then the easier way to resolve this to say, [00:20:20] Speaker 05: or one easy way to resolve this to say Brady claims are subject to the statute, but whether you have to meet the heightened standard in the statute as opposed to the Brady standard really can wait for another day because this claim in this case doesn't even meet the ordinary Brady standard, doesn't even meet the prima facie. [00:20:39] Speaker 00: I do think that's an easy way to resolve this case. [00:20:42] Speaker 05: And if I could just have... Yes, you can respond. [00:20:45] Speaker 05: On the testimony issue of why it doesn't meet the standard, can you respond to the argument that Ms. [00:20:53] Speaker 05: Goldstein laid out? [00:20:55] Speaker 00: Well, in the GRADE trial, Webster and Phyllis Webster testified, and this is on the September 26th a.m., page 29 of the transcript in the GRADE trial, which we supplemented in our appendix. [00:21:10] Speaker 00: She testified that McDade Fo was the one who oversaw everything. [00:21:14] Speaker 00: He delivered the kilos to the customer, he received the money and counted it up, and he brought it back to me. [00:21:20] Speaker 00: That's totally consistent with what she testified in McDade's trial. [00:21:23] Speaker 00: There's nothing inconsistent about that. [00:21:25] Speaker 00: She testified consistently about who Nunn was in McDade's trial. [00:21:29] Speaker 00: She testified consistently about who Nunn was in the great trial. [00:21:32] Speaker 00: So apart from them, there's just been no inconsistency between her testimony. [00:21:37] Speaker 00: So no prime official inconsistency between her testimony in 22 trials. [00:21:41] Speaker 00: We also could look at this court's direct appeal opinion, the nonpublicity opinion, in which the court [00:21:46] Speaker 00: determined whether or not there was evidence of McDade being a manager, and the court pointed to three things. [00:21:52] Speaker 00: The court pointed to Webster's testimony, it pointed to James Miles' testimony, who was one of Webster's customers, wholesale customers, and Benjamin Ash's testimony, who was one of Webster's wholesale customers. [00:22:06] Speaker 00: Both of those individuals testified that they dealt with McDade exclusively after a certain point. [00:22:12] Speaker 00: Not only did they testify to that, Benjamin Ash, and this is [00:22:16] Speaker 00: related in the court's directed field of opinion. [00:22:19] Speaker 00: Benjamin Ash testified that on two occasions, he paged McDade to get cocaine. [00:22:25] Speaker 00: And instead of McDade delivering the cocaine, a separate individual by the name of Blatt delivered the cocaine. [00:22:32] Speaker 00: So that right there, in and of itself, shows that Mr. McDade had some manager in control over other individuals, this individual being Mr. Blatt. [00:22:42] Speaker 00: So those two things in combination, no inconsistency, even if there was a slight inconsistency, no materiality on the managerial claim shows that there is a non-material ready claim here. [00:22:55] Speaker 00: That resolves every other issue, I think, in the case, including the constitutional issues that are looking at the case. [00:23:01] Speaker 05: Judge Friedman had mentioned that this would be a prime case for Executive Clemency. [00:23:05] Speaker 05: Do you know the status of that? [00:23:08] Speaker 00: No, Your Honor. [00:23:09] Speaker 00: Unless requires any questions, further questions were asked at the motion for authorization. [00:23:17] Speaker 00: Thank you. [00:23:23] Speaker 05: Thank you. [00:23:23] Speaker 05: We'll give you two minutes for a bottle. [00:23:25] Speaker 01: Thank you, Your Honors. [00:23:27] Speaker 01: First, I just want to highlight that there is a difference between a full merits review of this case versus simply deciding whether McDade alleged a prima facie Brady claim. [00:23:36] Speaker 01: The merits review we maintain are really a matter for the district court, and here the court has enough evidence before it to determine that McDade does in fact allege a prima facie Brady claim. [00:23:46] Speaker 01: And as such, simply saying that it's a non-meritorious Brady claim does not dispose of this case as easily as it did in Lopez. [00:23:53] Speaker 01: Here, the court has to reach the broader issues. [00:23:56] Speaker 01: And in response to your constitutional questions, Your Honor, Felker does indeed say that Congress can modify abuse of the right on the successive petition. [00:24:05] Speaker 01: However, what Panetti and Magwood make clear is that Congress can only do so when it has expressed a clear intent to do so. [00:24:13] Speaker 01: They've declined to read into EDPA a strict application where meritorious constitutional claims are foreclosed without that clear expression of intent. [00:24:22] Speaker 01: And for the three reasons I mentioned in my opening, Your Honors, we do not believe that Congress clearly expressed that intent any place in the statute. [00:24:28] Speaker 01: First, because Brady claims to satisfy the cause of abuse of the writ by the nature of suppression of evidence. [00:24:35] Speaker 01: And as such, they shouldn't be subject to the successive bar as a matter of course. [00:24:39] Speaker 01: And second, because Brady claims fall under a different standard of newly discovered evidence, as the court discussed in aggers, in that it is distinct. [00:24:46] Speaker 01: The prosecutor's obligation to disclose a sculpatory or impeaching evidence is special. [00:24:52] Speaker 03: And this court- Does his claim go to his guilt, or does it go to his sentence? [00:24:57] Speaker 01: His sentence, Your Honor. [00:24:59] Speaker 03: So what do you do? [00:25:00] Speaker 03: I mean, the statute says you have to... a reasonable juror doesn't do sentencing. [00:25:06] Speaker 01: Certainly, Your Honor, but the judge can evaluate whether his sentencing was adequate in light of the fact that he might have not had Brady to inform... in light of his Brady claim. [00:25:16] Speaker 03: So, again... No, what I'm asking about is the last section of 2255 for newly discovered evidence. [00:25:26] Speaker 03: It doesn't apply because it doesn't go to his skill. [00:25:30] Speaker 01: Correct, Your Honor. [00:25:31] Speaker 01: 2255-H completely forecloses review of sentencing claims, so this claim also would not even be considered under the bar. [00:25:38] Speaker 01: But again, we maintain that because Congress did not express a clear intent to subject those claims to the successive bar to begin with, this court should not read EDPA so strictly, as the Supreme Court mentioned in Panetti and Magwood. [00:25:50] Speaker 01: And so, Your Honors, that's why I am at his respectfully request that you transfer this case back to the district court for a merit-based analysis. [00:25:58] Speaker 05: Ms. [00:25:58] Speaker 05: Goldstein, you are appointed by the Court, and Mr. Goldblatt, thank you for the excellent briefing and argument. [00:26:04] Speaker 05: We appreciate it very much. [00:26:06] Speaker 05: Thanks. [00:26:06] Speaker 05: The case is submitted.