Bernard v. United States

Cite as: 592 U. S. ____ (2020) 1
Statement
SOTOMAYORof, S
J., , J.
dissenting
OTOMAYOR
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A110 (20–6570)
_________________
BRANDON BERNARD v. UNITED STATES
ON APPLICATION FOR STAY AND PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[December 10, 2020]
The application for stay of execution of sentence of death
presented to JUSTICE ALITO and by him referred to
the Court is denied. The petition for a writ of certiorari is
denied.
JUSTICE BREYER and JUSTICE KAGAN would grant the ap-
plication and the petition for a writ of certiorari.
JUSTICE SOTOMAYOR, dissenting from the denial of certi-
orari and application for stay.
Today, the Court allows the Federal Government to exe-
cute Brandon Bernard, despite Bernard’s troubling allega-
tions that the Government secured his death sentence by
withholding exculpatory evidence and knowingly eliciting
false testimony against him. Bernard has never had the
opportunity to test the merits of those claims in court. Now
he never will. I would grant Bernard’s petition for a writ of
certiorari and application for a stay to ensure his claims are
given proper consideration before he is put to death.
The prosecution sought the death penalty for Bernard
partly on the theory that he was “likely to commit criminal
acts of violence in the future.” Electronic Case Filing in No.
2:20–cv–00616, Doc. 3 (SD Ind., Nov. 24, 2020) (App. Vol.
I), p. 46 (ECF). To prove Bernard’s future dangerousness,
the prosecution repeatedly invoked his gang affiliations, see
id., at 389–422, in particular emphasizing that all members
of his gang were supposedly “equal.” See, e.g., id., at 379
2 BERNARD v. UNITED STATES
Statement
SOTOMAYORof, S
J., , J.
dissenting
OTOMAYOR
(“Q: . . . And did you ever have a conversation . . . regarding
everyone being equal in the gang? A: Yes, sir”). By claiming
that all gang members were equal, the prosecution in turn
argued that Bernard was as dangerous as any other mem-
ber of the gang and was destined for a life of violence in
prison. See, e.g., id., at 414 (“Q: [What happens] when . . .
a new . . . gang member comes onboard to the federal prison
system[?] A: Well, for one, he would have to, what they call,
‘make your bones.’ You have to earn being a gang member,
which means you have to commit a crime, or what we con-
sider a Bureau of Prisons violation”). The strategy worked:
The jury found that Bernard posed an ongoing risk to the
safety of others and, ultimately, recommended the death
penalty. 1
Nearly two decades later, in a resentencing proceeding
for one of Bernard’s co-defendants, the prosecution called
Sergeant Sandra Hunt, the former head of the Gang Unit
in the Police Department for Killeen, Texas. Sergeant Hunt
testified that she had told the prosecution before Bernard’s
trial that the gang Bernard had been associated with was
not composed of equal members. Instead, it was a thirteen-
tier hierarchy with Bernard at the very bottom. Sergeant
Hunt also produced a pyramidal diagram, developed in con-
sultation with a government informant, to illustrate the
gang’s structure. Both Sergeant Hunt’s testimony and this
diagram conflicted heavily with the prosecution’s charac-
terization during Bernard’s sentencing of the gang’s flat
structure and Bernard’s position within it. Hunt’s testi-
mony also made clear that the prosecution had known
about this diagram when it tried Bernard. See ECF Doc. 3,
p. 226 (“Q: Did you at that time, at our request, go back to
see if any of the identities of any of the other people who
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1 We now know the prosecution’s predictions about Bernard’s future
dangerousness were entirely inaccurate. Bernard has not committed a
single disciplinary infraction in his two decades in prison.
Cite as: 592 U. S. ____ (2020) 3
Statement
SOTOMAYORof, S
J., , J.
dissenting
OTOMAYOR
were involved in that were on this chart? A: Yes, I did”); id.
(“Q: And did you locate the individual known as Brandon
Bernard on this chart? A: I did”).
Soon after Sergeant Hunt’s testimony, Bernard moved for
relief from his death sentence in federal district court. Ac-
cording to Bernard, the Government never disclosed Ser-
geant Hunt’s opinion that he was on the periphery of the
gang or the existence of the diagram illustrating his subor-
dinate role. 2 With this information, Bernard argued, he
could have undermined the prosecution’s case that he was
an equal participant in gang activity and posed the same
risk of future dangerousness as other gang members. Thus,
Bernard claimed, the Government had violated its obliga-
tion to turn over exculpatory evidence under Brady v. Mar-
yland, 373 U. S. 83 (1963), and had elicited knowingly false
testimony concerning his role in the gang in violation of Na-
pue v. Illinois, 360 U. S. 264 (1959).
The Court of Appeals for the Fifth Circuit denied Ber-
nard’s motion without considering his Brady and Napue
claims on the merits. 820 Fed. Appx. 309 (2020) (per cu-
riam). According to the Fifth Circuit, because Bernard had
already petitioned for relief from his death sentence in the
past, his current motion was subject to the strict rules that
apply to second or successive petitions. Those rules, which
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2 The Government argues that, because it chose not to call Sergeant
Hunt until years after Bernard’s trial, it could not have improperly sup-
pressed an expert opinion “that had not yet been expressed.” See Brief
in Opposition 23. But Sergeant Hunt’s testimony confirms that she of-
fered her opinion on the gang’s structure and the status of members
within it (including Bernard) to the prosecution at the time of Bernard’s
trial. The Government also argues that, before trial, it disclosed to Ber-
nard’s defense the existence of a handwritten version of the same dia-
gram as a possible exhibit. Whether that constitutes proper disclosure
under Brady and mitigates Bernard’s claim is the type of issue best re-
solved by the district court in the course of evaluating Bernard’s claims
on the merits.
4 BERNARD v. UNITED STATES
Statement
SOTOMAYORof, S
J., , J.
dissenting
OTOMAYOR
are designed to encourage inmates to raise promptly all ob-
jections to their conviction, require a petitioner filing a sec-
ond-in-time petition to produce “newly discovered evidence
. . . sufficient to establish by clear and convincing evidence
that no reasonable factfinder would have found the movant
guilty of the offense.” 28 U. S. C. §2255(h)(1). This stand-
ard is far more stringent than the “ ‘reasonable probability
of a different result’ ” standard that typically applies to
Brady claims. Banks v. Dretke, 540 U. S. 668, 699 (2004)
(quoting Kyles v. Whitley, 514 U. S. 419, 434 (1995)).
The Fifth Circuit got it wrong. Its illogical rule conflicts
with this Court’s precedent, and it rewards prosecutors who
successfully conceal their Brady and Napue violations until
after an inmate has sought relief from his convictions on
other grounds. This Court held in Panetti v. Quarterman,
551 U. S. 930 (2007), that the restrictions on second-or-suc-
cessive petitions do not apply to a claim that was not ripe
when the inmate filed his first-in-time petition. Id., at 945. 3
Any other rule would have troubling consequences, as Pan-
etti explained. Through no fault of their own, inmates
would “ ‘run the risk’ . . . of ‘forever losing their opportunity
for any federal review of their unexhausted claims.’ ” Id., at
945–946 (quoting Rhines v. Weber, 544 U. S. 269, 275
(2005)). Consequently, “conscientious defense attorneys
would be obliged to file unripe (and, in many cases, merit-
less) . . . claims in each and every” case to preserve claims
in case they later became ripe. 551 U. S., at 943.
Panetti’s reasoning applies with full force to Brady
claims. As in Panetti, applying the bar on second-or-succes-
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3 In other words, as JUSTICE BREYER explained in Magwood v. Patter-
son, 561 U. S. 320 (2010), “Panetti’s holding [is] that an application con-
taining a claim that the petitioner had no fair opportunity to raise in his
first habeas petition is not a second or successive application.” Id., at
343 (opinion concurring in part and concurring in judgment) (internal
quotation marks omitted).
Cite as: 592 U. S. ____ (2020) 5
Statement
SOTOMAYORof, S
J., , J.
dissenting
OTOMAYOR
sive habeas petitions to Brady claims “would produce trou-
blesome results, create procedural anomalies, and close [the
courthouse] doors to a class of habeas petitioners seeking
review without any clear indication that such was Con-
gress’ intent.” 551 U. S., at 946 (quoting Castro v. United
States, 540 U. S. 375, 380–381 (2003); internal quotation
marks omitted). Take the present case. How exactly was
Bernard supposed to have raised a Brady claim more than
a decade ago when he brought his first habeas petition,
given that he was unaware of the evidence the Government
concealed from him?
Yet that is what the Fifth Circuit’s rule demands. 4 That
rule perversely rewards the Government for keeping excul-
patory information secret until after an inmate’s first ha-
beas petition has been resolved. Prosecutors who success-
fully conceal their violations avoid accountability so long as
they can show that the withheld evidence would not “be suf-
ficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty
of the offense.” 28 U. S. C. §2255(h)(1). Under this rule,
prosecutors can run out the clock and escape any responsi-
bility for all but the most extreme violations.
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4 The Fifth Circuit’s ruling follows that of several other Circuits. See,
e.g., Tompkins v. Secretary, Dept. of Corrections, 557 F. 3d 1257, 1260
(CA11 2009). Those decisions suffer from the same fatal flaws, as recog-
nized by judges across the Courts of Appeals. See Long v. Hooks, 972 F.
3d 442, 486 (CA4 2020) (Wynn, J., concurring) (“[T]o subject Brady
claims to the heightened standard of §2244(b)(2) is to reward investiga-
tors or prosecutors who engage in the unconstitutional suppression of
evidence with a ‘win’ ”); Scott v. United States, 890 F. 3d 1239, 1258
(CA11 2018) (arguing that the Eleventh Circuit’s decision adopting the
same rule as the Fifth Circuit’s should be reconsidered en banc because
it “is fatally flawed” and fails “to adhere to—or even to attempt to apply—
the Panetti factors”); Gage v. Chappell, 793 F. 3d 1159, 1165 (CA9 2015)
(“Under our precedents as they currently stand, prosecutors may have
an incentive to refrain from disclosing Brady violations related to pris-
oners who have not yet sought collateral review”).
6 BERNARD v. UNITED STATES
Statement
SOTOMAYORof, S
J., , J.
dissenting
OTOMAYOR
If the prosecution had not committed the Brady and Na-
pue violations Bernard alleges, there is a reasonable proba-
bility Bernard would have been spared a death sentence.
By all indications, the jury’s decision to sentence him to
death was anything but easy. See, e.g., In re Bernard, Pe-
tition for Clemency Seeking Commutation of Death Sen-
tence, Exh. E–1 (Nov. 10, 2020) (Dec. of Juror Gary
McClung, Jr.) (“The penalty phase was not as easy for me.
I was uncomfortable giving Mr. Bernard the death penalty
and have been bothered with my decision since trial”). The
jury rejected the death penalty on two of Bernard’s three
death-eligible convictions. Five of the nine jurors at Ber-
nard’s trial now either support or do not oppose a clemency
petition to commute his death sentence to life in prison. See
id., Exhs. A–I. Against that backdrop, there is a reasonable
probability that evidence casting doubt on a centerpiece of
the Government’s theory that Bernard posed a risk of fu-
ture dangerousness would have been enough to persuade
just one juror to reject the death penalty.
That is all that is required for relief under Brady and Na-
pue. Yet because of the Fifth Circuit’s rule, Bernard’s claim
was rejected without fair consideration of its merits. Ber-
nard should not be executed before his claims have been
tested under the correct standard. Nor should others like
him find themselves procedurally barred by similarly per-
verse and illogical rules. For those reasons, I would grant
Bernard’s petition and application for a stay.