Federal Habeas Corpus: How to Raise a Brady Claim

Whenever a prosecutor withholds favorable evidence from the defense, it cuts to the central core of fairness in the criminal justice system. But someone raising these constitutional claims in a federal habeas petition faces some big hurdles that can bar even the best claims. Here`s how to go about having some success with these claims.

What is a Brady Claim?

The U.S. Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963), that a prosecutor must disclose favorable evidence to a defendant:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Handing over “Brady material” to the defense is a well-known term in the state and federal legal systems. When the prosecution fails to fulfill this obligation, a defendant has what`s called a Brady claim. The Court established the “essential components” of such a claim in Strickler v. Greene, 527 U.S. 263 (1999):

  • The evidence must be favorable because it`s either exculpatory or impeaching,
  • The evidence must have been suppressed by the prosecutor either willfully or inadvertently, and
  • The suppression prejudiced the defendant, in that there`s a “reasonable probability” of a different outcome with the evidence.

The prosecutor not only has the duty to hand over favorable evidence but also “to learn of any favorable evidence known to others acting on the government`s behalf,” including evidence possessed by law enforcement. This duty exists even if the defense fails to request any evidence, or the evidence is readily available in the public domain (such as court documents). Dennis v. Sec`y Penn. DOC, 834 F.3d 263 (3d Cir. 2016) (en banc).

Brady isn`t limited to just physical evidence of a crime, however. In fact, the case was about the prosecutor suppressing a codefendant`s confession to the crime that would`ve been critical to the defense. The Court has recognized several “Brady-type” violations over the decades, beginning even before the Brady case:

  • Jencks v. United States, 353 U.S. 657 (1957) (entitled to production of statements by government witnesses)
  • Napue v. Illinois, 360 U.S. 264 (1959) (false evidence known by prosecutor violates due process)
  • Giglio v. United States, 405 U.S. 150 (1972) (entitled to evidence of perjury by government witnesses)
  • Kyles v. Whitley, 514 U.S. 419 (1995) (prosecution obligated to learn about favorable evidence)
  • Wearry v. Cain, 577 U.S. 385 (2016) (plea offer for government witness is Brady material)

The Standard for Proving a Brady Claim

The key to a Brady claim is that the evidence withheld by the prosecutor must have been “material.” The Supreme Court said in Strickler that “evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” This isn`t a high bar:

The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.

The Court said that there`s “never a real Brady violation” unless the prosecutor`s failure to disclose evidence would`ve changed the outcome. Thus, a Brady claim hinges entirely on whether the evidence withheld was material. Another way to look at it is that the remedy for a Brady violation isn`t to punish the prosecutor for hiding evidence, but to ensure that the criminal proceeding was “fair.” Smith v. Fairman, 769 F.2d 386 (7th Cir. 1986).

Filing a Brady Claim

Procedural Default:

The Supreme Court established in Strickler that a Brady claim cannot be procedurally-defaulted by a petitioner`s failure to raise the claim earlier on appeal. “In the context of a Brady claim, a defendant cannot conduct the reasonable and diligent investigation mandated by [this Court] to preclude a finding of procedural default when the evidence is in the hands of the state.”

Statute of Limitations:

There`s a one-year clock to file a habeas petition in federal court. sec 2244(d)(1), sec 2255(f). A Brady claim usually restarts the one-year clock to file a habeas petition in federal court for both state and federal petitioners under the “new fact” provision. Quezada v. Scribner, 611 F.3d 1165 (9th Cir. 2010) (restarting clock under 28 U.S.C. sec 2244(d)(1)(D) for state petitioner), Whitfield v. United States, 2022 U.S. App. LEXIS 11428 (6th Cir. Apr. 27, 2022) (restarting clock under 28 U.S.C. sec 2255(f) for federal petitioner). A Brady violation may also restart the clock under the provision that allows a late filing once an “unconstitutional impediment” created by the government is removed. See, e.g., Brown v. Sec`y DOC, 750 F. App`x 915 (11th Cir. 2018).

Important points for state petitioners:

A state petitioner, filing a habeas petition in federal court under 28 U.S.C. sec 2254, must first exhaust all post-conviction avenues in state court. sec 2254(b), (c). If the state court says the Brady claim is procedurally-defaulted under state court rules, a federal court will uphold that default if it`s an “adequate and independent” state-court rule. Here`s what the court in Breezee v. Perry, 2022 U.S. App. LEXIS 4062 (6th Cir. Feb. 14, 2022), said that means:

  • The rule must apply to the claim and the petitioner failed to comply with the rule,
  • State courts must actually enforce the rule, and
  • The Rule must be “firmly established and regularly followed.”

Because a Brady claim usually involves new evidence, a federal habeas court is limited to only the record that was before the state court during all the proceedings leading up to the federal petition. Cullen v. Pinholster, 563 U.S. 170 (2011). If the new evidence wasn`t properly presented in state court, the federal court cannot consider it unless the petitioner can show “actual innocence.” sec 2254(e)(2). However, a federal habeas court can allow a petitioner to return to state court to further develop the state-court record with the new evidence. See Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2011).

Important points for federal petitioners:

A federal petitioner can file a motion to vacate his conviction or sentence, under 28 U.S.C. sec 2255, if it was imposed in “violation of the Constitution or laws of the United States.” sec 2255(a). Brady held that suppression of favorable evidence by the prosecutor is a violation of due process, which falls under the Fifth Amendment and provides grounds for a sec 2255 motion.

Be careful, though, about raising a Brady claim under the guise of an ineffective assistance of counsel (IAC) claim. Brady isn`t an IAC kind of problem, and you risk being procedurally-defaulted because your claim would then be based on defense counsel`s performance, and not on the prosecutor`s failure to disclose favorable evidence. See, e.g., Scott v. Mullin, 303 F.3d 1222 (10th Cir. 2002), but see Smith v. Warden, 780 F. App`x 208 (6th Cir. 2019) (finding IAC of appellate counsel for failing to raise a valid Brady claim).

Second or Successive Habeas Bars to Brady Claims

Even though it`s the prosecutor`s fault when it comes to a Brady claim, some courts still say that the bars to second or successive (SOS) habeas petitions apply to Brady claims raised after a habeas petition has already been denied. Under the SOS bar for both state and federal petitioners, there must be a showing of “actual innocence” with the new-found evidence to allow another habeas petition with a Brady claim. See sec 2244(b)(2)(B), sec 2255(h)(1).

This has been a hot topic in the courts and judges have voiced strong opinions about how unfair it is to subject Brady claims to the SOS habeas rules. See In re Jackson, 12 F.4th 604 (6th Cir. 2021) (concurring judge arguing SOS bar “rewards” prosecutors for hiding evidence). In fact, all three judges in Jiminez v. Sec`y DOC, 758 F. App`x 682 (11th Cir. 2018), disagreed with the required outcome in that case and urged the Supreme Court to hear the appeal. But the high court has repeatedly refused to decide this issue. See cert den. Jiminez v. Jones, 139 S. Ct. 659 (2018).

Most courts, however, have granted authorization to file a SOS habeas petition with a Brady claim, holding that such a claim meets the prima facie showing required to allow authorization. But courts have held that if the materiality prong of a Brady claim isn`t met, some courts won`t authorize another petition. United States v. Lopez, 577 F.3d 1053 (9th Cir. 2008).

IN CONCLUSION, a Brady claim is a serious constitutional violation that can and often does overturn convictions. Raising the claim in the proper way is crucial if you want to obtain habeas relief in federal court.

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