Gregory L. Brown v. W. Muniz

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GREGORY L. BROWN, No. 16-15442
Petitioner-Appellant,
D.C. No.
v. 4:14-cv-04497-YGR

W. L. MUNIZ,
Respondent-Appellee. OPINION

Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted October 19, 2017
San Francisco, California

Filed May 8, 2018

Before: Consuelo M. Callahan and Carlos T. Bea, Circuit
Judges, and Jane A. Restani, * Judge.

Opinion by Judge Callahan

*
The Honorable Jane A. Restani, Judge for the United States Court
of International Trade, sitting by designation.
2 BROWN V. MUNIZ

SUMMARY **

Habeas Corpus

The panel (1) affirmed the district court’s dismissal of
California state prisoner Gregory Brown’s second-in-time
habeas corpus petition for failure to obtain authorization
from this court to file a second or successive petition, and
(2) denied his application for leave to file a second or
successive petition.

Brown’s second-in-time habeas petition alleged failure
to disclose materially exculpatory evidence under Brady v.
Maryland. The panel held that Brady claims are subject to
AEDPA’s second or successive gatekeeping requirements
because the factual predicate supporting a Brady claim – the
state’s failure to disclose exculpatory evidence before trial –
exists at the time of the first habeas petition.

Considering the exculpatory evidence individually and
together with the evidence presented at trial, the panel held
that Brown fails to make a prima showing of actual
innocence by clear and convincing evidence. The panel
therefore denied his application for leave to file a second or
successive petition.

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 BROWN V. MUNIZ 3

COUNSEL

Grace R. DiLaura (argued), Assistant Federal Public
Defender; Steven G. Kalar, Federal Public Defender; Office
of the Federal Public Defender, San Francisco, California;
for Petitioner-Appellant.

Gregory Ott (argued), Deputy Attorney General; Peggy S.
Ruffra, Supervising Deputy Attorney General; Jeffrey M.
Laurence, Senior Assistant Attorney General; Xavier
Becerra, Attorney General; Office of the Attorney General,
San Francisco, California; for Respondent-Appellee.

OPINION

CALLAHAN, Circuit Judge:

We must decide whether a prisoner’s second-in-time
habeas petition based on a claim under Brady v. Maryland,
373 U.S. 83 (1963) is second or successive for purposes of
federal court review. The State of California disclosed
allegedly exculpatory evidence in Petitioner Gregory
Brown’s case after Brown’s initial federal habeas petition
was denied. Because he did not know of the evidence at the
time of his initial petition, Brown argues he should not be
subject to the more stringent standard for seeking habeas
relief in any subsequent federal petition.

We conclude that Brown’s argument is foreclosed by the
plain text of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), binding Supreme Court and Ninth
Circuit precedent, and Congress’ intent in enacting AEDPA.
We therefore apply AEDPA’s second or successive bar to
Brown’s claim and assess whether he has made the requisite
4 BROWN V. MUNIZ

prima facie showing of actual innocence. Because the
alleged exculpatory evidence falls short of this standard, we
affirm the district court’s dismissal of Brown’s petition for
lack of jurisdiction and deny his application for leave to file
a second or successive habeas petition with the district
court. 1

I.

Gregory Brown is currently serving a sentence of fifty-
six years-to-life for the February 7, 1995 attempted murder
of Ms. Robin Williams. Brown was convicted by a jury of
one count of conspiracy to commit murder and one count of
attempted murder in California state court on an aiding and
abetting theory. His two co-defendants, Wanda Fain and
Joseph Diggs, were also convicted.

A.

The following facts were presented to the jury at the trial
of the three co-defendants. On January 6, 1995, Williams
was at the home of Brown, Fain, and Diggs in San Francisco.
Williams lived nearby, and frequented Brown’s home.
Responding to a domestic disturbance nearby, police
approached Brown’s home, where they found Brown in the
doorway holding a bag of crack cocaine and a gun. The
police arrested Brown and Williams. That same day,
Williams gave a statement to the police that she had seen
Brown with both the cocaine and the gun.

About a week-and-a-half later, and while Brown was
awaiting trial on drug charges stemming from his January 6
arrest, Fain and Brown approached Williams at a neighbor’s

1
Brown’s motion for judicial notice (Dkt. No. 17) is GRANTED.
 BROWN V. MUNIZ 5

home. As Brown looked on, Fain gave Williams a note that
stated: “Well, well, well, as you know playing with fire get
burned. Silence is the very best policy, bitch. P.S.: Chickens
get plucked every day, so don’t play.” Included with the note
was an explicit photo of Williams that Brown had taken
years earlier. Fain then told Williams that Brown wanted to
speak with her. Williams refused because she was scared.
Fain and Brown left the residence.

Brown later ran into Williams on the street. Brown told
her that he would take care of her if she did not testify against
him in his drug case. After that conversation, Williams
resumed her visits to Brown’s residence where, on at least
one occasion, the two smoked crack cocaine.

According to Williams, on the day of the attempted
murder, she traveled to and from Brown and Fain’s residence
several times, smoking crack cocaine throughout the day.
When she arrived at the residence at 7 p.m. to see Fain, she
saw that Brown and Fain were talking (Diggs was also
present), and so left to take a walk. She returned about five
minutes later. By that time Brown had left. Fain asked
Williams if she wanted to go to a “trick house” on Third
Street so that they could prostitute themselves. Williams
agreed because she wanted money to pay for more drugs.
Williams, Fain, and Diggs left the residence at around
7:30 p.m. Fain told Williams that Diggs was joining them to
provide protection. Williams was “very high” at the time.
Brown did not accompany them. Notably, expert testimony
established that Williams’ habitual crack cocaine use,
combined with the head injury she sustained from being shot
in the head later that evening, could have impaired her
memory of that evening’s events.

From that point on, the accounts of Williams, Fain, and
Diggs diverge. Williams testified that she, Fain, and Diggs
6 BROWN V. MUNIZ

boarded a bus together at around 7:30 p.m. The three
departed the bus at the corner of Third and Jerrold Streets.
From there, Williams testified that she and Fain walked
down the street, laughing and talking, with Diggs following
behind. Williams’ last recollection before she was shot was
a car approaching her from behind. The police never
identified the car.

In contrast, Diggs told Officer Jeffrey Levin that he got
off the bus with Williams and then went into a nearby
Kentucky Fried Chicken on his own. He stated that he later
re-boarded a bus, leaving Williams behind.

Fain’s account of her movements is both internally
inconsistent and contrary to Diggs’ account. Fain first told
Levin that she met up with Diggs for the first time at the
Third and Jerrold Street bus stop—i.e., after she departed the
bus. But later she said that she got on the bus with both
Williams and Diggs.

The defense introduced several pieces of exculpatory
evidence. Besides the fact that no forensics connected Fain
or Diggs—let alone Brown—to the attempted murder, the
defense also introduced impeachment evidence against
Williams. The defense showed that Williams had been
involved in altercations with others in the past, was beaten
up for committing burglary, and had informed on
perpetrators in other crimes—all of which suggested that
individuals other than the co-defendants may have had a
motive to kill Williams. The jury also heard testimony that
a man known as “Tails” had threatened Williams at gunpoint
the day before the attempted murder. Finally, the jury heard
from Angel Stigert, who found Williams lying in the street
after she was shot. Stigert saw a car parked two blocks away
with someone standing outside, “crouching over [and]
looking toward where [Williams’] body was.” Stigert
 BROWN V. MUNIZ 7

offered a vague description of “a big black person with [a]
white T-shirt.” The mysterious interloper, thereafter
nicknamed “Suspect 1,” was never identified. Despite the
exculpatory evidence, the jury convicted Brown, Fain, and
Diggs.

B.

In 1998, the California Court of Appeal affirmed the
convictions and sentences of all three co-defendants and the
California Supreme Court denied review. The Court of
Appeal discussed the inculpatory facts in Brown’s case. On
the conspiracy charge, the court noted that (1) Brown had a
motive to murder Williams because he was angry with her
for talking to the police and wanted to prevent her from
testifying against him in his drug case; (2) he demonstrated
an intent to act on these motives through specific actions—
namely, “he directed Fain to prepare and deliver the
threatening note; he gave Fain a suggestive photograph of
Williams to attach to the note; he accompanied Fain when
the note was delivered but waited outside and had Fain tell
Williams that he wanted to speak with her privately”; (3) he
told Williams he would protect her if she did not testify
against him in his drug case; (4) on the day of the shooting
Brown was present with Fain and Diggs at their apartment
when Williams arrived; and (5) Brown left shortly before
Fain suggested that she and Williams prostitute
themselves—an excursion that culminated in Williams’
attempted murder. As to the last fact, the Court of Appeal
concluded that “[t]he jury could reasonably infer that Brown
left the apartment so Williams would not become suspicious:
not because he was unaware of some hidden agreement
between Fain and Diggs.”

On the charge of aiding and abetting attempted murder,
the court found that, based on the same evidence supporting
8 BROWN V. MUNIZ

the conspiracy conviction, the jury could have reasonably
concluded that Brown at least intended to aid and abet Fain
and Diggs in the attempted murder, even if he did not
personally intend to kill Williams.

In 1998, after the Court of Appeal affirmed his
convictions, Brown filed a writ of habeas corpus in federal
district court, which the court denied on the merits. The
court refused to grant a Certificate of Appealability
(“COA”), as did the Ninth Circuit, thereby concluding
Brown’s first attempt at federal habeas relief.

C.

New evidence came to light more than a decade later.
Between October 2010 and May 2011, the Trial Integrity
Unit of the San Francisco District Attorney’s (“DA”) Office
issued letters to the San Francisco County Public Defender’s
Office and San Francisco Bar Association’s Indigent
Defense Administrator, stating that three San Francisco
Police Department officers had material in their personnel
files that was previously undisclosed and which “may be
subject to disclosure under Brady v. Maryland (1963)
373 U.S. 83.” The letters implicated three officers who were
in some way related to Brown’s case: Ms. Pamela Hockett
(May 19, 2011), Sergeant Michael Hutchings (Apr. 29,
2011), and Sergeant Wallace Gin (Oct. 6, 2010).

The Hockett information dates back to 1987, the
Hutchings information to 1989, and the Gin information to
1988—long before the officers’ associations with the
Brown, Fain, and Diggs case. The letters state that the DA’s
office was not conceding that any of the information was
exculpatory or that it cast doubt upon the correctness of any
convictions.
 BROWN V. MUNIZ 9

The material implicating Hockett is potential
impeachment evidence. It shows that more than a decade
before Brown’s trial, Hockett was arrested on charges of
drug possession, carrying a concealed firearm, having a
hypodermic needle, and carrying a loaded firearm in a public
place. The charges were dismissed. Hockett did not testify
at Brown’s trial or at any preliminary hearing. She was,
however, one of the officers who responded to the crime
scene. She also produced a crime scene log listing the
comings and goings of police personnel. No claim is made
that the crime scene log was inculpatory or exculpatory, in
and of itself.

The material implicating Hutchings is also potential
impeachment evidence. The information involves a 1984
charge against Hutchings for loitering where children
congregate, resisting arrest, and prostitution. The charges
were dismissed after diversion. Like Hockett, Hutchings
also did not testify at Brown’s trial or at any preliminary
hearing. Nor did Hutchings have any involvement in
Brown’s attempted murder case. Hutchings’ association
with Brown stemmed from his participation in Brown’s
January 1995 arrest for drug possession. In fact, Hutchings
was a defense witness at a pretrial motion to suppress the
drug evidence.

The material implicating Gin involves an unrelated
matter that predated the Williams shooting by seven years. 2
Of the three officers, Gin was the most closely involved in
Brown’s case: unlike Hockett and Hutchings, Gin testified
at Brown’s trial. And while Gin had no role in the
investigation and did not interview the co-defendants or the

2
The material itself is filed under seal and is not reproduced in this
opinion.
10 BROWN V. MUNIZ

victim, he interviewed the driver of a bus who happened
upon Williams’ body, as well as two passengers on the bus.
The information in Gin’s investigation report was
corroborated by live witnesses, including the bus driver, who
testified at Brown’s trial.

In 2014, Brown filed a second-in-time habeas petition in
federal district court under 28 U.S.C. § 2254, alleging that
the Hockett, Hutchings, and Gin information was materially
exculpatory Brady evidence. The district court dismissed
Brown’s petition without prejudice for lack of jurisdiction.
It determined that the petition was second or successive, and
therefore Brown was required to obtain authorization from
the Ninth Circuit to file his petition in order for the district
court to assert jurisdiction. The district court granted a COA
on the question of whether Brown’s petition was second or
successive, and Brown timely appealed.

II.

We review a district court’s dismissal of a habeas
petition as second or successive de novo. Wentzell v. Neven,
674 F.3d 1124, 1126 (9th Cir. 2012). Our review of an
application to file a second or successive habeas petition is
governed by the standard set forth in AEDPA, as is our
determination of whether a second-in-time habeas petition is
second or successive under AEDPA. See 28 U.S.C.
§ 2244(b)(2)–(b)(3).

A.

First-in-time habeas petitions filed in federal court are
subject to AEDPA § 2254, which provides that

[a]n application for a writ of habeas corpus
on behalf of a person in custody pursuant to
 BROWN V. MUNIZ 11

the judgment of a State court shall not be
granted with respect to any claim that was
adjudicated on the merits in State court
proceedings unless the adjudication of the
claim—

(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court
of the United States; or

(2) resulted in a decision that was based
on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding.

28 U.S.C. § 2254(d).

A different and more demanding standard governs most
second-in-time federal habeas petitions, termed “second or
successive.” While AEDPA does not define “second or
successive,” we have looked to the text of the statute, the
corpus of Supreme Court jurisprudence interpreting
§ 2244(b), and the pre-AEDPA abuse-of-the-writ doctrine to
trace its contours. It is now understood that a federal habeas
petition is second or successive if the facts underlying the
claim occurred by the time of the initial petition, Panetti v.
Quarterman, 551 U.S. 930, 945 (2007), and if the petition
challenges the same state court judgment as the initial
petition, Magwood v. Patterson, 561 U.S. 320, 333 (2010)
(explaining that a writ of habeas corpus is filed “‘on behalf
of a person in custody pursuant to the judgment of a State
court.’” (emphasis in opinion) (quoting 28 U.S.C.
§ 2254(b)). Stating the second criterion in the converse, a
12 BROWN V. MUNIZ

petition is not second or successive if it is based on an
intervening state court judgment—e.g., a new sentencing
determination—notwithstanding that the same claim
challenging a conviction (or even the new sentence) could
have been brought in the first petition. See Magwood,
561 U.S. at 331–36. Nor is a petition second or successive
if the factual predicate for the claim accrued only after the
time of the initial petition. United States v. Buenrostro, 638
F.3d 720, 725–26 (9th Cir. 2011) (per curiam).

If the petition is second or successive, then the district
court lacks jurisdiction and must dismiss the petition unless
and until the court of appeals grants an application to file it.
28 U.S.C. § 2244(b)(3)(A). In evaluating such an
application, the court of appeals is bound by § 2244(b)’s
gatekeeping requirements:

A claim presented in a second or successive
habeas corpus application under section 2254
that was not presented in a prior application
shall be dismissed unless—

(A) the applicant shows that the claim
relies on a new rule of
constitutional law, made
retroactive to cases on collateral
review by the Supreme Court, that
was previously unavailable; or

(B)

(i) the factual predicate for the claim
could not have been discovered
previously through the exercise of
due diligence; and
 BROWN V. MUNIZ 13

(ii) the facts underlying the claim, if
proven and viewed in light of the
evidence as a whole, would be
sufficient to establish by clear and
convincing evidence that, but for
constitutional error, no reasonable
factfinder would have found the
applicant guilty of the underlying
offense.

Id. § 2244(b)(2). 3 Thus, absent a showing of intervening
constitutional law, a second or successive habeas petitioner
must overcome two obstacles to invoke the district court’s
jurisdiction: he must (1) show that the factual predicate for
his habeas claim reasonably could not have been discovered
at the time of his initial habeas petition, and (2) demonstrate
that the previously undiscovered facts, if shown to be true in
a habeas action, suffice to prove his innocence by clear and
convincing evidence. Buenrostro, 638 F.3d at 725–26. 4

3
The Supreme Court upheld § 2244(b) as consistent with the
Suspension Clause of the United States Constitution in Felker v. Turpin,
518 U.S. 651, 664 (1996). The Suspension Clause provides that “[t]he
Privilege of the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may require
it.” U.S. Const., art. I, § 9, cl. 2.

4
Buentrostro involved AEDPA § 2255(h), not § 2244(b). Section
2255(h) governs second or successive habeas petitions filed pursuant to
a federal court judgment, rather than a state court judgment, but it
incorporates by reference and applies the standard set forth in § 2244.
Our circuit cites cases interpreting both provisions interchangeably. See,
e.g., Gage, 793 F.3d at 1165 (a case applying § 2244, and relying on
Buenrostro).
14 BROWN V. MUNIZ

B.

We conclude that Brady claims are subject to AEDPA’s
second or successive gatekeeping requirements because the
“factual predicate [supporting a Brady claim] existed at the
time of the first habeas petition.” Gage v. Chappell,
793 F.3d 1159, 1165 (9th Cir. 2015). This conclusion is
compelled by the plain text of § 2244(b), Supreme Court
precedent, and our own case law.

1. We begin, as always, with the plain text of the statute.
Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999).
Section 2244(b)(2)(B)(i) applies the second or successive
bar to claims in which “the factual predicate for the claim
could not have been discovered previously through the
exercise of due diligence.” Two premises necessarily
underpin this provision: the factual predicate must have
existed previously, and the defense must not have known
about it. Section 2244(b) therefore essentially defines a
Brady-type event. 5 It follows ineluctably that Brady claims
are therefore subject to § 2244(b).

2. Supreme Court case law accords with this
interpretation. The Court has explained that § 2244(b)
applies to second-in-time habeas petitions except where the
factual predicate did not exist at the time of the initial habeas
petition. See Panetti, 551 U.S. at 945.

5
We note that, should exculpatory evidence be discovered by the
State after the first habeas petition is filed, and is thereafter suppressed
by the State over the course of post-conviction proceedings, the result
would be different. In that event, the factual predicate for a Brady claim
would have accrued only after the petitioner filed his initial petition, and
so the new claim would not have been ripe at the time of the initial filing.
See Panetti, 551 U.S. at 945.
 BROWN V. MUNIZ 15

In Panetti, the Court assessed a death row inmate’s
second-in-time habeas petition—brought years after his
initial petition was denied—in which he argued that his
death sentence was unconstitutional under Ford v.
Wainwright, 477 U.S. 399 (1986) because he was insane.
Ford ruled that the Eighth Amendment precludes the
government from executing an insane inmate. Ford,
477 U.S. at 409–10. Because a claim ripens only at the time
the factual predicate supporting a habeas claim accrues,
Panetti explained that “Ford-based incompetency claims, as
a general matter, are not ripe until after the time has run to
file a first federal habeas petition”—and oftentimes not until
execution is imminent. Id.; Magwood, 561 U.S. at 335 n.11.
Panetti therefore deemed the inmate’s petition not to be
second or successive because his Ford claim did not ripen
until just before the time of his execution. Panetti, 551 U.S.
at 945. In reaching this conclusion, the Court considered
(1) its own case law both pre- and post-AEDPA, and
(2) AEDPA’s purposes. Id. at 943–47.

First, Panetti looked to the Court’s decisions in Slack v.
McDaniel, 529 U.S. 473, 486 (2000), and Stewart v.
Martinez-Villareal, 523 U.S. 637, 644 (1998). Slack held
that a pre-AEDPA petition was not second or successive
notwithstanding that it challenged the same state court
judgment, because it merely supplemented a first-in-time
petition that was dismissed for lack of exhaustion. 6 529 U.S.
at 487. Martinez-Villareal reached the same conclusion with
regard to a Ford claim that the petitioner, unlike the
petitioner in Panetti, had raised in his first habeas petition.
523 U.S. at 644. The district court dismissed the first
petition, however, because it was unripe at the time. Id. In

6
The Court implied that it would have reached the same result under
AEDPA. 529 U.S. at 486.
16 BROWN V. MUNIZ

discussing the rationale behind Martinez-Villareal, the Court
in Panetti explained the unusual circumstance presented by
Ford claims:

While the later filing “may have been the
second time that [the prisoner] had asked the
federal courts to provide relief on his Ford
claim,” the Court declined to accept that there
were, as a result, “two separate applications,
[with] the second . . . necessarily subject to
§ 2244(b).” The Court instead held that, in
light of the particular circumstances
presented by a Ford claim, it would treat the
two filings as a single application. The
petitioner “was entitled to an adjudication of
all of the claims presented in his earlier,
undoubtedly reviewable, application for
federal habeas relief.”

551 U.S. at 944–45 (quoting Martinez-Villareal, 523 U.S. at
643). Rather than limiting Martinez-Villareal to exempting
only those Ford claims that were actually brought as (unripe)
claims in an initial petition, Panetti couched Martinez-
Villareal in a broader doctrinal context. The Court
concluded that “Congress did not intend the provisions of
AEDPA addressing ‘second or successive’ petitions to
govern a filing in the unusual posture presented here: a
§ 2254 application raising a Ford-based incompetency claim
filed as soon as that claim is ripe.” Id. at 945.

Panetti fortified its conclusion by considering Congress’
intent under AEDPA, and the “practical effects” of its
holding. Id. The Court explained that

[t]he statute’s design is to “further the
principles of comity, finality, and
 BROWN V. MUNIZ 17

federalism.” Miller-El v. Cockrell, 537 U.S.
322, 337, 123 S. Ct. 1029, 154 L.Ed.2d 931
(2003) (internal quotation marks omitted).
Cf. Day v. McDonough, 547 U.S. 198, 205–
206, 126 S. Ct. 1675, 164 L.Ed.2d 376 (2006)
(“The AEDPA statute of limitation promotes
judicial efficiency and conservation of
judicial resources, safeguards the accuracy of
state court judgments by requiring resolution
of constitutional questions while the record is
fresh, and lends finality to state court
judgments within a reasonable time” (internal
quotation marks omitted)).

Id. The Court determined that requiring a petitioner to file
an unripe Ford claim to preserve the right to full habeas
review of that claim—a la Martinez-Villareal—would
frustrate Congress’ goals:

An empty formality requiring prisoners to
file unripe Ford claims neither respects the
limited legal resources available to the States
nor encourages the exhaustion of state
remedies . . . . Instructing prisoners to file
premature claims, particularly when many of
these claims will not be colorable even at a
later date, does not conserve judicial
resources, “reduc[e] piecemeal litigation,” or
“streamlin[e] federal habeas proceedings.”
Burton v. Stewart, 549 U.S. 147, 154, 127 S.
Ct. 793, 797, 166 L.Ed.2d 628 (2007) (per
curiam) (internal quotation marks omitted).
AEDPA’s concern for finality, moreover, is
not implicated, for under none of the possible
approaches would federal courts be able to
18 BROWN V. MUNIZ

resolve a prisoner’s Ford claim before
execution is imminent. See Martinez-
Villareal, supra, at 644–645 (acknowledging
that the District Court was unable to resolve
the prisoner’s incompetency claim at the time
of his initial habeas filing).

Id. at 946. The Court ultimately held that petitions “that
would require unripe (and, often, factually unsupported)
claims to be raised as a mere formality, to the benefit of no
party,” are not second or successive under AEDPA. Id. at
947. Thus, “the statutory bar on ‘second or successive’
applications does not apply to a Ford claim brought in an
application filed when the claim is first ripe.” 7 Id.

7
Panetti marked the Supreme Court’s first foray into the area of
unripe claims filed after a habeas petition has been decided, but it was
not the first court to venture into the patch. Over the span of nearly two
decades, several lower courts have recognized that unripe claims—albeit
outside the Ford context—are not subject to the second or successive bar
when properly raised in a subsequent federal habeas petition. See, e.g.,
Hill v. Alaska, 297 F.3d 895, 898–99 (9th Cir. 2002) (challenge to release
date based on post-sentencing parole determination was not second or
successive because the factual predicate—calculation of the release
date—occurred after petitioner filed his initial petition); Medberry v.
Crosby, 351 F.3d 1049, 1062 (11th Cir. 2003) (challenge to prison
disciplinary proceeding was not second or successive because it “could
not have been raised in an earlier petition” challenging petitioner’s
conviction or sentence); James v. Walsh, 308 F.3d 162, 168 (2d Cir.
2002) (challenge to calculation of release date was not second or
successive because it was based on facts that “did not exist” at the time
of the initial habeas petition); Crouch v. Norris, 251 F.3d 720, 725 (8th
Cir. 2001) (claim stemming from a refusal to grant parole was not second
or successive because the facts underlying the claim did not exist at the
time of the initial habeas petition); In re Cain, 137 F.3d 234, 235–36 (5th
Cir. 1998) (challenge to prison disciplinary decision was not second or
successive because it occurred after petitioner filed his initial habeas
 BROWN V. MUNIZ 19

Panetti’s limited exception to § 2244(b) comports with
the plain text of § 2244(b)(2)(B)(i): whereas a Brady claim
involves a “factual predicate” that existed but could
previously “not have been discovered,” an unripe claim
involves no previously existing “factual predicate” at all.
Section 2244(b)(2)(B)(i) simply does not contemplate such
a scenario.

Treating unripe claims as second or successive is also
inconsistent with AEDPA’s purposes of promoting comity,
finality, federalism, and judicial efficiency, as Panetti
explained. See Panetti, 551 U.S. at 946–47. Doing the same
for Brady claims, by contrast, serves AEDPA’s goals. It
gives due regard to States’ administration of their own
criminal justice systems by limiting collateral attacks on
state court judgments to those where “extreme malfunctions
in the state criminal justice systems” occurred. Harrington
v. Richter, 562 U.S. 86, 102–03 (2011) (emphasis added). In
the same vein, by recognizing only those Brady claims that
show by clear and convincing evidence a petitioner’s actual
innocence, a court of appeals acts consistent with Congress’
purpose of keeping the federal courts’ focus on ensuring the
integrity of a verdict, rather than second-guessing state court
judgments. See id.; see also Davis v. Ayala, 135 S. Ct. 2187,

petition); Walker v. Roth, 133 F.3d 454, 455 (7th Cir. 1997) (per curiam)
(petition was not second or successive because it “challenge[d] the
constitutionality of a proceeding which obviously occurred after
[petitioner] filed, and obtained relief, in his first habeas petition”);
United States v. Scott, 124 F.3d 1328–29, 1330 (10th Cir. 1997) (petition
was not second or successive where ineffective assistance of appellate
counsel claim raised in the petition did not exist at the time of petitioner’s
initial petition); cf. Benchoff v. Colleran, 404 F.3d 812, 817–18 (3d Cir.
2005) (because challenged parole determination occurred before
petitioner filed his first habeas petition, his subsequent challenge was
second or successive).
20 BROWN V. MUNIZ

2199 (2015) (habeas relief is available only where the state
court’s decision was so unreasonable that there is no
“possibility for fairminded disagreement” (internal
quotation marks omitted)).

In sum, having reviewed § 2244(b)’s plain text and the
Supreme Court’s narrowly circumscribed exception for
unripe claims, we decline to read into the Court’s decisions
an additional and qualitatively different exception for Brady
claims.

3. Finally, our own case law accords with this
interpretation. Indeed, we explained this very distinction in
Buenrostro, albeit in the context of an ineffective assistance
of counsel (“IAC”) claim. 638 F.3d at 725–26. Buenrostro
involved a petitioner serving a life sentence for federal drug
crimes. Id. at 721. After the district court denied his initial
petition, Buenrostro discovered that his trial attorney had
rejected a plea deal that would have limited his sentence to
fourteen years. Id. Buenrostro argued that his attorney’s
rejection of the deal amounted to deficient performance, and
that his case should be reopened under Federal Rule of Civil
Procedure 60(b). Id.

The district court construed Buenrostro’s motion as
second or successive under § 2255—the federal court analog
to § 2244. Id. A panel of this court agreed and, applying
§ 2255’s “actual innocence standard,” denied his application
to file his petition in district court. Id. at 725–26. Buenrostro
then went on to distinguish Panetti. It explained that Panetti
is limited to the narrow circumstance of a claim that does not
ripen until after an initial habeas petition is decided. Id. at
725. Buenrostro’s IAC claim, by contrast, was ripe at the
time of his first habeas petition: the alleged constitutional
error had already occurred, and the district court would have
had jurisdiction to rule on it. See id. at 725–26. Buenrostro
 BROWN V. MUNIZ 21

just didn’t know about it. The court held that § 2255
addresses this precise scenario, and explained that “the
words of § 2255(h) indicate Congress’ clear intent to
prohibit us from certifying second-in-time claims, ripe at the
time of a prisoner’s first § 2255 proceeding but not
discovered until afterward,” unless the petitioner can satisfy
§ 2255’s criteria. Id.

Our subsequent decision in Gage also concerned facts
discovered after trial but before the filing of an initial habeas
petition. But in Gage, those facts supported a Brady rather
than an IAC claim. Gage was serving a 70-year sentence for
sexually assaulting his daughter. Gage, 793 F.3d at 1163.
After he was convicted but before he was sentenced, the trial
judge ordered the state to turn over the victim’s medical and
psychiatric records for in camera review. Id. While Gage
was not permitted to view the records, the trial court
disclosed some of their contents—namely, that the victim’s
mother—Gage’s ex-wife—had described her daughter as a
“pathological liar.” Id. Armed with this exculpatory
evidence, the trial court “concluded that the testimony of the
victim and her mother [implicating Gage] was not credible,
leaving insufficient evidence to support the jury’s verdict.”
Id. The court thereby vacated Gage’s conviction. Id.

After the California Court of Appeal reinstated the
conviction and sentenced Gage to seventy years, Gage ran
his appeals up through the state courts, arguing that the
State’s failure to turn over the victim’s medical records
violated Brady. Id. The state courts rejected Gage’s appeals.
Id. Gage eventually filed a pro se habeas petition in federal
district court. Id. at 1164. Curiously, Gage did not press his
Brady claim in the federal proceeding. Id. at 1163–64. The
district court denied the petition, which a panel of this court
upheld. Id. at 1164.
22 BROWN V. MUNIZ

Years later, Gage sought this court’s permission to file a
second-in-time habeas petition to assert his Brady claim. Id.
A panel of this court rejected Gage’s argument that the
petition fell under the Panetti exception. Id. at 1165. The
court held that Buenrostro “foreclose[d] Gage’s argument,”
reasoning that, unlike the petitioner’s Ford claim in Panetti,
the factual predicate for Gage’s Brady claim “existed at the
time of [Gage’s] first habeas petition.” Id. More
specifically, Gage determined that

[t]he factual predicate for Gage’s Brady
claim developed, at the latest, when the state
trial judge commented on the contents of [the
victim’s] medical records . . . . This is not a
case where the basis for the would-be
petitioner’s second petition did not exist or
was unripe when the first petition was filed.

Id. at 1165.

Critically, the court found only that the factual predicate
for Gage’s Brady claim accrued “at the latest[] when the
state trial judge commented on the contents of [the victim’s]
medical records.” Id. (emphasis added). The court left open
the question of when a factual predicate actually accrues for
purposes of a Brady claim. That question is squarely
presented here because the alleged Brady material was
completely unknown to Brown and his counsel at the time of
trial. Whereas Gage had knowledge of the Brady evidence
when he filed his initial habeas petition, Brown was
completely in the dark when he filed his own.

Today, we answer the question left open by Gage. We
conclude that a factual predicate accrues at the time the
constitutional claim ripens—i.e., when the constitutional
violation occurs. See Panetti, 551 U.S. at 945; Magwood,
 BROWN V. MUNIZ 23

561 U.S. at 335 n.11. In the case of a Brady claim, the
violation occurs at the time the State should have disclosed
the exculpatory evidence—i.e., before trial. 8 If the factual
predicate accrues before a petitioner brings an initial federal
habeas petition, then any subsequent federal petition raising
a claim based on that factual predicate is second or
successive and is governed by § 2244(b). Our conclusion is
compelled by the plain text of § 2244(b), the Supreme
Court’s decisions in Panetti and Magwood, and our own
subsequent decision in Buenrostro. 9

C.

We observe that our decision in United States v. Lopez,
577 F.3d 1053, 1064 (9th Cir. 2009) is in some tension with
our subsequent decisions in Buenrostro, Gage, and our
holding today. But Lopez is not controlling because it
expressly declined to reach the question we answer here.

8
To the extent Gage suggested that the factual predicate accrues at
the time the petitioner learns of it, that case runs afoul of the distinction—
made clear in Buenrostro—between unripe claims and unknown claims.
At any rate, because Gage did not hold that the requisite factual predicate
there did not accrue until the trial judge disclosed the alleged Brady
material, we need not and do not credit that court’s dicta and instead
follow Buenrostro’s clear holding to the contrary.

9
Our determination aligns the Ninth Circuit with our brethren in the
Fourth, Tenth, and Eleventh Circuits. In re Pickard, 681 F.3d 1201,
1205 (10th Cir. 2012) (Brady/Giglio claims were “certainly second-or-
successive . . . because they assert[ed] a basis for relief from the
underlying convictions”); Tompkins v. Sec’y, Dep’t of Corr., 557 F.3d
1257, 1259–60 (11th Cir. 2009) (per curiam) (holding that all second-in-
time habeas petitions based on Brady claims are second or successive);
Evans v. Smith, 220 F.3d 306, 323 (4th Cir. 2000) (“the standards that
Congress has established for the filing of second or successive petitions
account for precisely the type of situation[—Brady claims—]Evans
alleges”).
24 BROWN V. MUNIZ

Lopez held that the Brady claim there was, in fact, second or
successive. Id. However, it rested its decision on a finding
that the evidence underlying the claim was not material. Id.
The court declined to resolve whether “all second-in-time
Brady claims”—i.e., material and immaterial claims alike—
“must satisfy AEDPA’s gatekeeping requirements.” Id.; see
King v. Trujillo, 638 F.3d 726, 729 (9th Cir. 2011) (per
curiam) (recognizing Lopez for the proposition that a Brady
claim in a second-in-time habeas petition “may not be
subject to the ‘clear and convincing standard,’ provided the
newly discovered evidence supporting the claim was
‘material’ under Brady” (emphasis in original)).

We also observe that Lopez’s distinction between
material and immaterial Brady claims derives from the pre-
AEDPA abuse-of-the-writ doctrine. Lopez, 577 F.3d at
1064. While AEDPA’s provisions are inspired by and
borrow heavily from that judicially-developed rule, see
Slack, 529 U.S. at 486, we are bound by AEDPA itself, not
the judicial standard it superseded. AEDPA § 2244(b)
makes no distinction based on the materiality of predicate
facts. Its only concern is with the existence of those facts at
the time of the initial habeas petition. 10

10
Brown’s reliance on Douglas v. Workman, 560 F.3d 1156 (10th
Cir. 2009), is unavailing. First, it is non-binding extra-circuit precedent.
Second, Douglas acknowledged that the case was “unusual” and even
“unique” for several reasons that set it apart from the typical second-in-
time petition based on a Brady claim. Id. at 1187, 1189. Among other
things, Douglas’ first habeas petition was pending when he discovered
the Brady evidence. Id. at 1190. Because the “first habeas petition had
never been finally resolved,” the Tenth Circuit deemed the second
petition not to be second or successive. Id. Moreover, in a subsequent
decision, the Tenth Circuit made clear that it was aligned with its sister
circuits in deciding that Brady claims are, as a general rule, subject to
 BROWN V. MUNIZ 25

D.

Turning to the matter before us, we first consider
Brown’s argument that his Brady claims had not ripened at
the time of his first habeas petition. Brown seeks a rule that
Brady claims only ripen when a petitioner is on notice of the
Brady evidence. He relies heavily on our decision in Lopez
but, as discussed, that case is inapposite. Brown also notes
that in Magwood, seven justices concluded that a petition is
not second or successive if the petitioner had no “full and
fair opportunity to raise” the claim in the first petition. In
Magwood, those seven justices agreed that, because
Congress did not define “second or successive,” pre-
AEDPA abuse-of-the-writ principles are relevant to
determining whether a second-in-time habeas petition may
be maintained. Under the abuse-of-the-writ doctrine, “to
determine whether an application is ‘second or successive,’
a court must look to the substance of the claim the
application raises and decide whether the petitioner had a
full and fair opportunity to raise the claim in the prior
application.” Magwood, 561 U.S. at 346 (Kennedy, J.,
dissenting). Because Brown did not know of the Brady
material at the time of his first petition, he argues that he did
not have a “full and fair opportunity to raise” his claim at
that time.

Brown misreads Magwood. As Justice Kennedy made
clear in his dissent—which was joined by three other justices
and commanded a plurality of the Court—a petitioner “had
no fair opportunity to raise the claim in the prior application”
if “[1] the claim was not yet ripe at the time of the first
petition, or [2] where the alleged violation occurred only

AEDPA’s second or successive bar. In re Pickard, 681 F.3d 1201, 1205
(10th Cir. 2012).
26 BROWN V. MUNIZ

after the denial of the first petition.” Id. at 345–46 (Kennedy,
J., dissenting) (internal citation omitted).

Brown fails to satisfy either prong of Justice Kennedy’s
disjunctive test. First, the alleged Brady violations occurred
before Brown sought federal habeas review for the first time,
and so the “alleged violation” did not occur “after the denial
of [his] first petition.” Second, contrary to his legal
contention, Brown’s Brady claim did not ripen only when he
learned of the alleged Brady material. As discussed,
whether a claim is ripe under AEDPA turns on whether the
factual predicate existed, not whether the petitioner knew it
existed at the time of his initial habeas petition. Buenrostro,
638 F.3d at 725 (emphasis in original).

Consistent with the decisions in Panetti, Magwood, and
Buenrostro, we hold that Brown’s Brady claim was ripe at
the time of his first habeas petition because the alleged
constitutional violation—failure to turn over the Hockett,
Hutchings, and Gin information—occurred before Brown’s
trial even began. Thus, § 2244(b) applies to Brown’s claim
and he is entitled to file a second or successive habeas
petition only if he satisfies that provision’s gatekeeping
requirements.

III.

To make it through the § 2244(b) “gateway,” Brown
must make a prima facie showing that (1) the purported
Brady material “could not have been discovered previously
through the exercise of due diligence,” and (2) that the
material—if proven on habeas review—establishes by “clear
and convincing evidence that” Brown is actually innocent.
28 U.S.C. § 2244(b)(2)(B), (b)(3)(C); Lopez, 577 F.3d at
1064; Gage, 793 F.3d at 1166. The state concedes that
Brown makes a prima facie showing as to factor (1).
 BROWN V. MUNIZ 27

Because we agree with the State that Brown fails to make the
requisite showing as to factor (2), we address only that
factor.

A.

Brown faces an uphill climb straight out of the gate. He
must show that “the facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that,
but for constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying offense.”
28 U.S.C. § 2244(b)(2)(B)(ii) (emphasis added); Lopez, 577
F.3d at 1064; see also Cooper v. Woodford, 358 F.3d 1117,
1119 (9th Cir. 2004) (en banc). In other words, Brown must
do more than simply satisfy the standard for prevailing on
the underlying constitutional claim. For example, to prevail
on a straight Brady claim, a petitioner must show that the
state “suppressed [] evidence, either willfully or
inadvertently,” that is “favorable to the accused, either
because it is exculpatory, or because it is impeaching,” and
which is “material.” Turner v. United States, 137 S. Ct.
1885, 1893 (2017). “Evidence is material within the
meaning of Brady when there is a reasonable probability
that, had the evidence been disclosed, the result of the
proceeding would have been different.” Id. (internal
quotation marks omitted); Strickler v. Greene, 527 U.S. 263,
280 (1999) (same). Section 2244(b)(2), however, elevates
the “reasonable probability” standard for Brady materiality
to a more demanding “clear and convincing evidence”
standard. Lopez, 577 F.3d at 1064. Thus, our charge is to
decide whether the petitioner’s “claim (1) is based on newly
discovered evidence and [also] (2) establishes that he is
actually innocent of the crimes alleged,” King, 638 F.3d at
730 (emphasis added)—not whether the petitioner merely
28 BROWN V. MUNIZ

sustained a prejudicial constitutional injury. We have
observed that “[f]ew applications to file second or successive
petitions . . . . survive [§ 2244(b)’s] substantive and
procedural barriers.” Id. (internal citation omitted).

B.

Brown argues that the Hockett, Hutchings, and Gin
information would have “played a significant role in the
case” because of the weak evidence against him. But Brown
fails to show how the three officers’ participation in his
case—which was tangential at best—would have tipped the
scales in any juror’s mind.

The record reflects that Hockett’s involvement in
Brown’s trial had no nexus to any evidence inculpating
Brown. She was one of the first responders at the crime
scene and produced a log listing the comings and goings of
police officers. She offered no testimony and Brown makes
no assertion that her crime scene log omitted exculpatory
evidence. Moreover, even if Brown could have impeached
Hockett with the later-disclosed information, that would not
have affected the case at all because nothing in the crime
scene log, nor any actions taken by Hockett, inculpated
Brown. Thus, the Hockett information does not point to
Brown’s actual innocence.

We reach the same result regarding the Hutchings
material. Like Hockett, Hutchings did not testify at Brown’s
trial. In fact, Hutchings was not even involved in the
attempted murder investigation. Instead, he was a defense
witness in Brown’s case for drug possession. Brown
inexplicably argues that impeachment evidence against his
own witness in a separate case would have “weakened the
credibility of the [attempted murder] investigation.”
 BROWN V. MUNIZ 29

Further, the purported Brady material—information that
Hutchings was charged more than ten years earlier with
loitering where children congregate, resisting arrest, and
prostitution—is not material because it bears no relation to
his credibility in Brown’s case. And, as with Hockett, even
if Brown could have impeached Hutchings with the
information, that would not have reasonably affected the
outcome because Hutchings gathered no evidence
inculpating Brown.

Gin had a more substantive role in the attempted murder
case, but, again, any impeachment evidence is not material.
While Gin testified at Brown’s trial and produced a report,
his crime scene interviews with the bus driver and two bus
passengers were corroborated by live witness testimony.
Moreover, Gin was not involved in the investigation beyond
his presence at the crime scene for approximately twenty-to-
forty minutes, he did not uncover any exculpatory or
inculpatory evidence, and he had no reason to lie about his
witness interviews.

In sum, considering the exculpatory evidence
individually and together with the evidence presented at
trial, we hold that Brown fails to make a prima facie showing
of actual innocence by clear and convincing evidence.

IV.

We appreciate that our application of AEDPA’s second
or successive bar to Brady claims may seem harsh. Why
should courts saddle petitioners with a stringent standard of
proof that is a function of the government’s own neglect, or
worse, malfeasance? The answer is that such is the
framework Congress established. That a petitioner’s burden
is higher under these circumstances may seem inequitable,
but that is a policy, not a legal, objection. Through
30 BROWN V. MUNIZ

§ 2244(b), Congress made the legislative choice to prioritize
state-federal comity and the finality of criminal proceedings
over affording petitioners multiple opportunities to invoke
the federal courts’ jurisdiction under the same standard of
review—a choice that the Supreme Court has definitively
held to be consistent with the Suspension Clause. Felker v.
Turpin, 518 U.S. 651, 664 (1996) (“The added restrictions
which [AEDPA] places on second habeas petitions are well
within the compass of th[e] evolutionary process [defining
the parameters of the writ of habeas corpus], and we hold
that they do not amount to a ‘suspension’ of the writ contrary
to Article I, § 9.”). Indeed, the Suspension Clause
establishes no particular review standard for habeas
petitions; it does, however, guarantee access to the federal
courts to press a habeas claim. Section 2244(b) preserves
this bedrock constitutional right by requiring the court of
appeals to grant an application for habeas review when clear
and convincing evidence of actual innocence so requires.

CONCLUSION

Petitioner Gregory Brown’s habeas petition alleging
Brady violations is second or successive because the factual
predicate underlying his constitutional claim existed at the
time he filed his first-in-time habeas petition. Under a
second or successive analysis, his claim fails because the
underlying facts do not point to—let alone show by clear and
convincing evidence—his actual innocence. The district
court’s dismissal of Brown’s habeas petition for failure to
obtain authorization from this court to file a second or
successive petition is therefore AFFIRMED, and Brown’s
application for leave to file a second or successive habeas
petition is DENIED.