Storey v. Lumpkin ( 2022 )

Cite as: 597 U. S. ____ (2022) 1
Statement of SOTOMAYOR, 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 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 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 punishment-
phase 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 execution, Storey’s counsel learned
that the prosecutor’s assertion during the punishment-
phase closing arguments was false. In truth, Cherry’s par-
ents 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 com-
municated 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 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 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 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 explained, 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-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 un-
til 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 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, however, illustrates the injustice
that can flow from an overbroad 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 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 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).
Cite as: 597 U. S. ____ (2022) 5
Statement of SOTOMAYOR, J.
other federal courts will pay closer heed to Panetti and Ban-
ister when they confront this important issue.