Case: 19-70021 Document: 00515558264 Page: 1 Date Filed: 09/09/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 19-70021 United States Court of Appeals
Fifth Circuit
FILED
September 9, 2020
UNITED STATES OF AMERICA,
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
BRANDON BERNARD,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. 6:99-CR-70-2; 6:04-CV-164
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Federal prisoner Brandon Bernard appeals the district court’s order
construing his motion for relief from judgment as an unauthorized successive
habeas petition and transferring it to this court pursuant to 28 U.S.C. § 1631.
We affirm.
The underlying facts have been spelled out in several prior opinions and
do not bear repeating in full. Suffice it to say that twenty years ago, Bernard
was convicted of capital murder and sentenced to death under federal law after
*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 19-70021
a woman died on Army property when Bernard set fire to a car while she was
locked in its trunk. See United States v. Bernard, 299 F.3d 467, 471–73 (5th
Cir. 2002). After his conviction and sentence were affirmed on direct appeal,
Bernard filed his first 28 U.S.C. § 2255 habeas petition. The district court
denied the petition and we denied a certificate of appealability. See United
States v. Bernard, 762 F.3d 467 (5th Cir. 2014). Bernard then moved for relief
from judgment pursuant to Federal Rule of Civil Procedure 60(b). The district
court construed the motion as an unauthorized successive habeas petition and
dismissed it. We again denied a COA. See United States v. Vialva,
904 F.3d 356 (5th Cir. 2018).
Bernard has filed another motion for relief from judgment pursuant to
Section 2255, and alternatively, Rule 60(b), asserting for the first time claims
that the government (1) failed to disclose favorable evidence in violation of
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); and (2) presented false
testimony at trial in violation of Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173
(1959). The district court again construed the motion as a successive petition
but transferred it to this court pursuant to Section 1631. 1 Bernard now
appeals the district court’s transfer order, arguing his motion is not
successive. 2
We determine de novo whether a motion for relief from judgment should
be construed as an unauthorized successive habeas petition. United States v.
1The court originally dismissed the motion for lack of jurisdiction but later amended
its judgment and transferred the motion to this court. Bernard separately moves for
authorization to file a successive habeas petition. We do not address that motion at this time.
2 Because a Section 1631 transfer order to cure jurisdiction is not a “final order” under
28 U.S.C. § 2253(c)(1)(B), Bernard need not obtain a certificate of appealability. See United
States v. Fulton, 780 F.3d 683, 688 (5th Cir. 2015).
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Orozco-Ramirez, 211 F.3d 862, 865 (5th Cir. 2000); In re Coleman,
768 F.3d 367, 371 (5th Cir. 2014).
Bernard first contends the district court erred in construing his Section
2255 motion as a successive petition because the facts underlying his Brady
and Napue claims could not have been discovered at the time Bernard filed his
initial petition. While it is true that a habeas petition is not “successive simply
because it follows an earlier federal petition,” In re Cain, 137 F.3d 234, 235
(5th Cir. 1998), we have made clear that “claims based on a factual predicate
not previously discoverable are successive.” Leal Garcia v. Quarterman,
573 F.3d 214, 221 (5th Cir. 2009). In other words, if a prisoner’s later-in-time
petition raises a new claim based on evidence that the prisoner alleges was
undiscoverable at the time of his earlier petition, the petition is successive.
Bernard’s motion does just that and is therefore successive.
Still, Bernard argues Panetti v. Quarterman, 551 U.S. 930,
127 S. Ct. 2842 (2007) requires a different result. But Panetti only reinforces
our holding. There, the Supreme Court held that a capital prisoner’s second-
in-time habeas petition challenging his competency to be executed was not
successive because his claim had not ripened until after the disposition of his
first petition. Id. at 944–45. The Court emphasized that the second petition
was not successive because the factual predicate for the prisoner’s claim (his
mental state at the time of execution) could not have existed when the prisoner
filed his first petition, years before his scheduled execution. Id. at 945; see also
Tompkins v. Sec’y, Dep’t of Corr., 557 F.3d 1257, 1260 (11th Cir. 2009)
(recognizing that the Panetti petition was not successive since no claim of
incompetency for execution “is ever ripe at the time of the first petition because
the facts to be measured or proven—the mental state of the petitioner at the
time of execution—do not and cannot exist when the execution is years away”).
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Here, the factual predicate for Bernard’s claims (the government’s
alleged withholding of evidence and false testimony regarding Bernard’s role
in a gang) existed long before Bernard filed his first habeas petition. Whether
or not Bernard could have discovered those facts goes to whether he meets the
requirements for filing a successive petition, not whether his motion is
successive to begin with. See Blackman v. Davis, 909 F.3d 772, 572–73 (5th
Cir. 2018) (holding that a second-in-time petition raising Brady and Napue
claims was successive because the claims relied on previously undiscovered
facts); In re Wogenstahl, 902 F.3d 621, 627–28 (6th Cir. 2018); United States v.
Buenrostro, 638 F.3d 720, 725–26 (9th Cir. 2011); Tompkins, 557 F.3d at 1260.
The district court did not therefore err in construing Bernard’s Section 2255
motion as an unauthorized successive habeas petition.
Bernard also contends the district court erred in construing his
alternative Rule 60(b) motion as a successive petition. If a Rule 60(b) motion
seeks merely to present a new habeas claim, “it should be treated as a second-
or-successive habeas petition and subjected to AEDPA’s limitation on such
petitions.” In re Edwards, 865 F.3d 197, 203–04 (5th Cir. 2018). Bernard’s
Rule 60(b) motion sought to reopen the proceedings to allow him to litigate his
new Brady and Napue claims. “This is the definition of a successive claim.”
Id. at 204–05; see also Segundo v. Davis, 757 F. App’x 333, 336 (5th Cir. 2018)
(Rule 60(b) motion was a successive habeas petition where a claim of ineffective
assistance of counsel “was the focus of the motion, and reopening the
proceedings to relitigate it is the clear objective of the filing”). The district
court did not therefore err in construing Bernard’s alternative Rule 60(b)
motion as an unauthorized successive habeas petition.
For the foregoing reasons, the district court’s transfer order is
AFFIRMED. We REMAND to the district court with instructions to dismiss
Bernard’s Section 2255 petition for want of jurisdiction.
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