United States v. Conley

United States Court of Appeals
For the First Circuit

No. 01-2693

KENNETH CONLEY,

Petitioner, Appellee,

v.

UNITED STATES OF AMERICA,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Boudin, Chief Judge,
Bownes, Senior Circuit Judge,
and Torruella, Circuit Judge.

S. Theodore Merritt, Assistant U.S. Attorney, with whom,
Michael J. Sullivan, United States Attorney, and Ralph F. Boyd,
Jr., Assistant Attorney General, Civil Rights Division, United
States Department of Justice, were on brief, for appellant.
Saul M. Pilchen, with whom, Robert S. Bennett, Jonice Gray
Tucker, and Thomas J. Dougherty, were on brief, for appellee.

July 15, 2002
 BOWNES, Senior Circuit Judge. This is the third appeal

arising from defendant-appellant Kenneth Conley's jury conviction

of perjury in violation of 18 U.S.C. § 1623 and obstruction of a

grand jury investigation in violation of 18 U.S.C. § 1503. The

conviction followed Conley's testimony before a grand jury, which

was investigating the alleged beating of plainclothes police

officer Michael Cox by other police officers.

This case first came before us on direct appeal after

Conley's conviction. We affirmed the conviction and the sentence

of thirty-four months, ruling explicitly that the evidence was

sufficient to support the conviction. United States v. Conley, 186

F.3d 7, 20 (1st Cir. 1999), cert. denied, 529 U.S. 1017 (2000)

(Conley I). Conley then moved for a new trial based on newly

discovered evidence, violations of Brady v. Maryland, 373 U.S. 83

(1963), and jury misconduct. The district court granted the

motion, finding that a new trial was warranted "in the interests of

justice." United States v. Conley, 103 F. Supp. 2d 45, 57-58 (D.

Mass. 2000) (Conley II). We reversed, ruling that the district

court did not apply the correct legal test. United States v.

Conley, 249 F.3d 38, 46-47 (1st Cir. 2001).

The present appeal arises from a petition under 28 U.S.C.

§ 2255, which Conley filed shortly after our opinion in Conley II

had issued. The district court set aside Conley's conviction:

The Judgment of Conviction under which
Petitioner is presently restrained was

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 obtained in violation of the Due Process
Clause of the Fifth Amendment to the
Constitution of the United States in that
exculpatory evidence was withheld from
Petitioner during trial, which resulted in a
verdict not worthy of confidence.

Conley v. United States, 164 F. Supp. 2d 216, 217 (D. Mass. 2001)

(Conley III). We reverse the court below.

BACKGROUND

We set forth the factual background and much of the

procedural history of this case in Conley I, 186 F.3d at 11-15, and

Conley II, 249 F.3d at 40-44, and need not reiterate it. Only the

following points bear emphasis:

In his motion for a new trial pursuant to Fed. R. Crim.

P. 33, Conley focused on three pieces of evidence: the

government's failure to disclose Charles Bullard's grand jury

testimony; the government's knowing reliance on Richard Brown's

perjured testimony that the Boston Police Department had brought

drug charges against him in retaliation for the testimony he gave

at the civil trial; and the government's failure to disclose the

transcript of an interview of Officer Richard Walker by the

Internal Affairs Division (IAD) of the Boston Police Department, in

which Walker made a tentative photo identification of the tall

white officer who chased and arrested Brown as an officer other

than Conley.

The district court's opinion on this motion analyzed

these three pieces of evidence. After setting forth the standard

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for a new trial based on newly discovered evidence, United States

v. Wright, 625 F.2d 1017, 1019 (1st Cir. 1980), and a prosecutor's

obligation to disclose exculpatory evidence, Brady, 373 U.S. at 87,

it considered the separate and cumulative effect of the evidence.

Conley, 103 F. Supp. 2d at 51-55. The district court determined

that the government's failure to disclose Bullard's grand jury

testimony did not violate Brady, and that Officer Walker's IAD

interview transcript was "inconclusive as to the government's duty

of disclosure and defense counsel's duty of disclosure and defense

counsel's diligence." Conley II, 249 F.3d at 44. The court went

on to frame two questions for its consideration:

[Question One:] Did the prosecution have and
withhold information from defense counsel that
would have led a reasonable person to expect
that a civil trial would occur, similar to the
civil trial that did in fact occur after the
criminal conviction and sentence in this case,
and that the testimony at the civil trial
would be substantially as we now know it was
in fact?

[Question Two:] If so, were defense counsel so
severely impeded in their preparation of an
overall defense strategy and in the
performance of the function of cross-
examination of those particular witnesses, out
of the larger number of police officers,
including both uniformed and undercover
officers, who were in the vicinity of the
brutal beating of Michael Cox, an undercover
Boston police officer, by a uniformed Boston
police officer, that in the interests of
justice a new trial should be allowed?

103 F. Supp. 2d at 57-58.

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 The district court answered the first question in the

affirmative. The second question, it stated,

cannot be determined as a matter of law, under
the applicable legal standard explained in
Part III of this opinion [discussing Wright
and Brady, inter alia]. Instead, in the
unique circumstances of this case, I conclude
that the determination to allow or not to
allow a new trial is one committed to an
exercise of discretion by the court to which
the legal system assigns responsibility for
making the determination.

Id. at 58 (emphasis added). The district court then used the

discretion it had given itself to order a new trial "in the

interests of justice." Id.

In our review of the district court's opinion on Conley's

motion for a new trial, we discussed the requirements for a new

trial based on newly discovered evidence and/or violation of Brady.

Conley II, 249 F.3d at 44-45. We concluded that the district court

erred in allowing a new trial "in the interests of justice" instead

of applying either the Wright or Brady standards:

As we explained supra, a new trial may be
ordered in this case only if the standards set
forth in Wright and/or Brady are satisfied.
Both Wright and Brady require a showing that
the evidence was material and that the
defendant was prejudiced to some degree. We
must defer to the district court's explicit
findings as to the Bullard and Brown
testimony, as well as to its statement that
prejudice could not be determined upon a
consideration of the evidence as a whole.
Therefore, there is no basis for remanding
this matter, and we REVERSE the district
court's order.

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Conley II, 249 F.3d at 47 (internal citations omitted). We

directed that the district court's sentence, which we had affirmed

in Conley I, be executed. Id.

Only one week after we issued Conley II, Conley brought

a motion to set aside conviction under 28 U.S.C. § 2255. Again,

the district court held that Conley was entitled to relief from

judgment. Conley III, 164 F. Supp. 2d at 223-24.

In Conley III, on appeal before us now, the district

court made the following findings:

(1) Richard Walker testified at the trial of
defendant Conley that Walker went through a
hole in the fence and made his way to the
bottom of an incline;

(2) when at the bottom of the incline he saw
two men standing in the street, one tall (six
feet or six feet two) and the other shorter
(about . . . five nine);

(3) the prosecutor used this evidence in his
closing to suggest that the taller was Conley;

(4) during testimony of March 27, 1995 to the
Internal Affairs Division (IAD) of the Boston
Police Department, Walker was shown a group of
photographs and with some uncertainty selected
two as persons at the bottom of the incline,
neither of whom was Conley;

(5) defendant Conley claims that this evidence
was unavailable to Conley and his attorney at
the criminal trial;

(6) this and other material evidence came out
in open court in the later trial of a civil
action brought by Michael Cox against several
officers, including the defendant Conley, in
December 1998, some six months after the

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 defendant was convicted in the criminal trial;
and

(7) even though the testimony given at the
December 1998 civil trial could not have been
withheld by the prosecutor in the criminal
trial, because it did not then exist, the
defendant Conley argued in his motion for new
trial and continues to press the argument now
that the prosecutor had withheld, during and
before the criminal trial, information that
the prosecutor then had about the IAD
proceedings, and if the prosecutor had made
that information available to Conley and his
attorney in time for use during the criminal
trial, it would have made a material
difference in the defense strategy, including
cross-examination.

Id. at 221-22.1 The court made no findings concerning the other

evidence at issue in its earlier opinion, i.e., the testimony of

Bullard and Brown.

The district court held that the correct legal standard

was found in Wright, 625 F.2d at 1019. Conley III, 164 F. Supp. 2d

at 222. It then restated the same two questions it had formulated

in Conley I, set forth supra at page 4. It held:

The newly discovered evidence, taken together
with all the conflicts presented in evidence
known to the defense before and during the
criminal trial, presents a dramatically more
compelling basis for finding that defense
counsel's opportunity to present a creditable
challenge to the government's case as a whole

1
The court stated that it made these findings on an "enlarged
record," suggesting that it was considering more or different
evidence than it did in its earlier opinion. Id. at 222. Nowhere
does the court explain what that evidence is.

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 and to cross-examine effectively particular
witnesses was severely impeded.

Id. at 223.

Based on the factual findings recited supra, the court

concluded that Conley satisfied the elements of the Wright test.2

I conclude that the newly discovered evidence
is highly probative and neither immaterial nor
cumulative in nature. Instead, it is evidence
that strikes at the heart of the prosecution's
case, one which is largely based on the
credibility of its witnesses. Indeed, the
strength of this evidence leads me to find
that the defendant has met his burden of
showing a probable result of acquittal in a
new trial.

Id. The government appeals.

DISCUSSION

Under 28 U.S.C. § 2255, a prisoner in federal custody may

petition the sentencing court to vacate, set aside or correct the

sentence on the ground that the sentence was imposed in violation

of the Constitution or laws of the United States. Brackett v.

United States, 270 F.3d 60, 63 (1st Cir. 2001). Claims that

previously have been addressed on direct review, however, may not

be readjudicated collaterally under § 2255 absent equitable

2
Under Wright, the moving party must demonstrate the following
four elements: (1) the evidence claimed to be newly discovered was
unknown or unavailable to the defendant at the time of trial; (2)
failure to learn of the evidence was not attributable to lack of
diligence by the defendant; (3) the evidence is material, and not
merely cumulative or impeaching; and (4) it will probably result in
an acquittal upon retrial of defendant. 625 F.2d at 1019; see also
United States v. Gonzalez-Gonzalez, 258 F.3d 16, 20 (1st Cir.
2001).

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considerations, such as actual innocence or cause and prejudice.

Withrow v. Williams, 507 U.S. 680, 721 (1993) (Scalia, J.,

concurring); see also United States v. Michaud, 901 F.2d 5, 6 (1st

Cir. 1990); Tracy v. United States, 739 F.2d 679, 682 (1st Cir.

1984)("[a]bsent an intervening change in the applicable law, issues

that have been raised and decided on a motion for a new trial

cannot be reconsidered in a subsequent collateral attack" (quoting

United States v. Sanders, 723 F.2d 34, 36 (8th Cir. 1983)));

Dirring v. United States, 370 F.2d 862, 864 (1st Cir. 1967).

In a related vein, the doctrine of "law of the case" is

a prudential principle that "precludes relitigation of the legal

issues presented in successive stages of a single case once those

issues have been decided." Field v. Mans, 157 F.3d 35, 40 (1st

Cir. 1998) (quoting Cohen v. Brown Univ., 101 F.3d 155, 167 (1st

Cir. 1996)). "For a bar to exist, an issue must have been actually

considered and decided by the appellate court, or a decision on the

issue must be necessarily inferred from the disposition on appeal."

Id. (internal quotation marks omitted) (quoting Commercial Union

Ins. Co. v. Walbrook Ins. Co., Ltd., 41 F.3d 764, 770 (1st Cir.

1994)).

The law of the case doctrine prohibits a litigant from

resurrecting an issue decided by the trial court that either has

not been challenged on appeal or has been decided on appeal. Id.

at 40; United States v. Rosen, 929 F.2d 839, 842 n.5 (1st Cir.

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1991). Another aspect of the doctrine is the "mandate" rule, which

requires the district court to follow the ruling of the court of

appeals. Field, 157 F.3d at 40. We review an application of the

law of the case de novo. Id.

The district court's conclusion in Conley III that the

the newly discovered evidence pertaining to Walker satisfied the

Wright criteria is foreclosed by these doctrines. First, the

district court essentially reversed course as to whether the Walker

evidence fulfilled the requirement of prejudice. In its previous

decision, it held that the question of prejudice "could not be

determined as a matter of law" under the standards set forth in

Wright and Brady. 103 F. Supp. 2d at 58. That same evidence, it

now says, is sufficient to warrant a new trial under Wright. 164

F. Supp. 2d at 222.3

Moreover, the district court's most recent treatment of

the Walker evidence is at odds with its previous ruling as to at

least one other key element. Earlier, it called Walker's IAD

3
In its opinion in Conley II, the district court discussed in
some depth the testimony of Bullard and Brown, and made clear that
its holding as to prejudice encompassed the entirety of that newly
discovered and/or disclosed evidence. 103 F. Supp. 2d at 51-54.
The district court's opinion in Conley III, however, referenced
only the Walker evidence as a basis for its allowance of Conley's
§ 2255 motion. 164 F. Supp. 2d at 221-22. Although it mentioned
the Bullard and Brown testimony, it did so only in the context of
"Background Criminal Proceedings." Id. at 218. We read Conley
III, therefore, as premising its determination of a Wright
violation solely on the Walker evidence.

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testimony "inconclusive" as to the government's duty of disclosure

and defense counsel's diligence. 103 F. Supp. 2d at 55. In Conley

III, however, the court held that the Walker evidence satisfied all

of the elements of Wright, including, by inference, the requirement

that Conley's failure to learn of the evidence was not attributable

to his lack of diligence. 164 F. Supp. 2d at 223 (discussing

Wright, 625 F.2d at 1019).

In Conley II, we discussed and affirmed the district

court's factual findings as to these elements of the Wright test,

and instructed the court to carry out Conley's sentence. 249 F.3d

at 46-47. That decision binds the district court. See Field, 157

F.3d at 40; Withrow, 507 U.S. at 721. Accordingly, we reverse the

district court's order setting aside Conley's conviction.

We know of no additional evidence that would explain the

district court's new and contrary conclusions as to prejudice and

defense counsel's diligence. While the district court mentions in

passing an "enlarged record," it makes no specific findings that

support its about-face. Furthermore, the legal claims, although

recast in the form of a § 2255 petition, did not differ from the

claims before the district court and before us in Conley II. See

Tracy, 739 F.2d at 682 (a petitioner is still barred from

relitigating the subject matter of claims on collateral review even

if he recasts them in different nomenclature). Nor was there any

material change in the controlling law following Conley II. See

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id. Hence, we see no reason not to preclude the district court's

readjudication of settled issues.

For these reasons, we REVERSE the decision of the

district court. We remand this case to the Chief Judge of the

District Court for the District of Massachusetts with instructions

that Conley's thirty-four-month sentence be executed.

- Dissenting opinion follows -

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 BOUDIN, Chief Judge, dissenting. Conley may or may not

be guilty but he is certainly jinxed. The district court has twice

ordered new trials for Conley, each time giving reasons that

undercut its own order; and this court is now reversing the

district court for the second time. On this second occasion the

panel majority has compounded the district court’s mistake with one

of its own.

At Conley’s trial, three witnesses for the government

(Cox, Brown and Walker) testified that Cox chased Brown to the

fence and grabbed at Brown unsuccessfully as Brown scaled it and

dropped to the other side. Conley, by contrast, had earlier told

the grand jury that he had been close behind Brown and did not see

Cox at all. Whether Conley saw Cox pursuing Brown mattered to the

civil rights investigation: if untrue, Conley’s grand jury denial

that he had seen Cox wrongly forestalled efforts to have him

identify the other police officers who had beaten Cox immediately

after the chase under the illusion that Cox was a fleeing suspect.

By convicting Conley, the jury made clear that it

accepted the Cox-Brown-Walker version of events. Although the

chase occurred in the early morning hours in confusing conditions,

the trial evidence was adequate to support a conviction; and this

is so even though the prosecution witnesses were vulnerable1 and

1
Brown was a felon testifying against the man who had captured
him (Conley). Cox had been badly beaten and had fairly little

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their evidence was circumstantial as to Conley's guilt (since no

one could testify from personal knowledge that Conley had actually

seen Cox). Conley was sentenced to just under three years in

prison. On direct appeal, this court affirmed. United States v.

Conley, 186 F.3d 7 (1st Cir. 1999), cert. denied, 529 U.S. 1017

(2000).

After the affirmance, Conley moved for a new trial under

Fed. R. Crim. P. 33. Because this motion was made more than seven

days after the verdict, the rule by its terms limited Conley to

claims that newly discovered evidence justified a new trial. Under

the case law, the burden of showing that the evidence would likely

alter the result is ordinarily quite heavy, see United States v.

Wright, 625 F.2d 1017 (1st Cir. 1980); it is somewhat less if the

new evidence was wrongly withheld by the government in violation of

its obligations under Brady v. Maryland, 373 U.S. 83 (1963).

Conley made (and continues to make) claims in both categories.

The district court then ordered a new trial, without

finding prejudice under either Wright or Brady, instead, it said

that a new trial was justified in "the interests of justice," the

general test applied where a new trial motion is made within seven

days of conviction. See United States v. Conley, 103 F. Supp. 2d

recall about most of the events for several months after. As for
Walker, much of the “new evidence” now at issue aimed at impeaching
him.

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45 (D. Mass. 2000). On appeal by the government, this court held

that the district court could not use the general "interest of

justice" standard to bypass the established Wright and Brady

prejudice requirements for new trials. See United States v.

Conley, 249 F.3d 38 (1st Cir. 2001).

Conley then filed the present motion in the district

court under 28 U.S.C. § 2255, urging essentially the same newly

discovered evidence as the basis for a collateral attack on his

conviction.2 In its new decision, now before this court, the

district court granted the section 2255 motion, setting aside the

conviction and ordering a new trial. See Conley v. United States,

164 F. Supp. 2d 216 (D. Mass. 2001). In doing so, the district

court said that it was applying the Wright test, mandated by this

court’s earlier decision on the new trial motion. See id. at 222.

The district court then found that the Wright criteria were

satisfied by new evidence relied upon by Conley; this included a

ruling that the new evidence was so powerful that it would probably

cause an acquittal on retrial. See id.

2
Nowhere is the evidence neatly catalogued but at various
points Conley has relied on six pieces of alleged new evidence
under Wright, Brady or both: (1) post-trial testimony of a
security guard named Charles Bullard contradicting key prosecution
witnesses; (2) an item of evidence thought useful to impeach Brown;
and (3) four different items of evidence that might be used to
impeach Walker.

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 On the government’s present appeal, the panel majority

now reverses the district court, this time relying on the law of

the case doctrine instead of addressing Conley’s claims on the

merits. Law of the case doctrine has two branches: one provides

that a court must respect and follow its own prior rulings made at

a prior stage in the same case; the other branch——sometimes known

as the mandate rule——far more stringently precludes a lower court

from contravening the prior rulings of a higher court made at an

earlier stage of the same controversy.3

Although there are exceptions to the law of the case

doctrine, e.g., United States v. Bell, 988 F.2d 247, 251 (1st Cir.

1993), it is unnecessary to invoke them because the doctrine itself

does not properly apply on the present facts. The panel majority

begins by asserting that the district court has contradicted

itself; the panel opinion says the district court held on the Rule

33 motion that the new evidence did not meet the Wright standard

and now in the section 2255 motion the district court holds that it

does satisfy Wright.

3
Law of the case doctrine "posits that when a court decides
upon a rule of law, that decision should continue to govern the
same issues in subsequent stages in the same case." Arizona v.
California, 460 U.S. 605, 618 (1983); see also NLRB v. Goodless
Bros. Elec. Co., 285 F.3d 102, 107 (1st Cir. 2002); United States
v. Rivera-Martinez, 931 F.2d 148, 151 (1st Cir. 1991), cert.
denied, 502 U.S. 862 (1991); Knapp Shoes, Inc. v. Sylvania Shoe
Mfg. Corp., 72 F.3d 190, 197-98 (1st Cir. 1995), cert. denied, 517
U.S. 1245 (1996).

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 Although the district court is the author of this

confusion, nothing in its prior Rule 33 decision said plainly that

the Wright or Brady standard could not be met. Rather, in

retrospect, it is quite possible that the district court aimed to

bypass Wright, believing that it had a broader power to decide the

new trial issue under the "interest of justice" standard "in the

unique circumstances of this case." 103 F. Supp. 2d at 58.

Nothing else explains its present insistence that, having been told

by this court to apply Wright, it now concludes that Wright

warrants a new trial.

The truth is that, so far as Wright and Brady are

concerned, the district court’s earlier Rule 33 opinion is

impenetrable. Certainly in light of its later actions, no one can

say confidently just what it meant in saying that "the second

question stated above cannot be determined as a matter of law,"

103 F. Supp. 2d at 58, the cryptic statement relied on by the panel

majority. It is one thing to hold the district court to something

it clearly said; it is quite another to invoke law of the case on

the basis of a debatable reading of the district court’s opinion,

a reading implicitly disclaimed by the very judge who wrote the

opinion.

Still less does the district court’s new ruling as to

Wright contradict the so-called mandate rule, mainly relied on by

the panel majority. The "mandate" itself——effectively, the

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directive embodied in this court’s earlier decision——ordered only

that the district court deny the new trial motion under Rule 33,

which it did. This by itself does not preclude a section 2255

proceeding. At most it simply precludes the district court from

revisiting a substantive issue decided by this court on the first

go-around. See Knapp, 72 F.3d at 197-98.

The district court’s new ruling under section 2255 might

contradict this court’s decisions on the Rule 33 appeal if this

court had itself earlier considered and rejected the Wright claim

on the merits, but this court did not do so. Instead, believing

(it now appears mistakenly) that the district court had rejected

the Wright claim on the merits, and that that ruling was not being

challenged, this court thought that no remand for further

consideration was necessary after the panel rejected the district

court’s "interests of justice" rationale for a new trial.

Where, then, does this leave matters? In principal, it

means that the panel ought to address the merit of Conley’s 2255

claims rather than rely on law of the case. Unfortunately for

Conley, his Wright claim, whatever its merit, is not available on

collateral attack. The district court was mistakenly concerned

that consideration of Wright might violate the mandate rule, Conley

v. United States, No. 01-10853 (D. Mass. July 30, 2001), but that

was the wrong concern: the correct one is that new evidence claims

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under Wright are cognizable only in post trial motions for a new

trial and on direct review of such decisions.

On direct appeal, any claim of error can be raised; but

section 2255 is a surrogate for habeas. See Davis v. United

States, 417 U.S. 333, 343 (1974). Powerful evidence of innocence

satisfies one of the new gatekeeper requirements under the amended

habeas statute, 28 U.S.C. § 2255; but a traditional habeas ground

is required once one gets through the gate. Merely to claim that

new evidence casts doubt, even grave doubt, on the correctness of

a final judgment of conviction is not a ground for relief on

collateral attack. See Herrera v. Collins, 506 U.S. 390, 400

(1993); United States v. Evans, 224 F.3d 670, 673-74 (7th Cir.

2000).4

This leaves open Conley’s claim under Brady, a settled

basis for collateral attack. See Barrett v. United States, 965

F.2d 1184, 1189 (1st Cir. 1992). Indeed, claims based on new

evidence wrongfully withheld can prevail on a lesser showing of

prejudice (because they assume government misconduct). See United

States v. Gonzalez-Gonzalez, 258 F.3d 16, 20 (1st Cir. 2001). In

4
It is not clear if and when a habeas claim might ever be
based simply on proof of actual innocence, see Herrera, 506 U.S. at
417; but Conley is not within miles of such a showing. At best,
the newly discovered evidence, adding everything together, simply
increases in some measure—how much is debatable—the likelihood that
at a new trial a jury might find reasonable doubt of guilt and so
acquit.

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its latest decision, the district court invoked Wright and said

expressly "I do not consider further the Brady test." Conley v.

United States, 164 F. Supp. 2d 216, 222 (D. Mass. 2001). Nor did

the district court squarely address and resolve the merits of the

Brady claim at any earlier stage.

Thus, Conley is entitled to a decision on the Brady issue

either through a remand to the district court, which is the

customary approach, or by having this court address and decide that

issue. Both courses would involve delay; but in that respect this

case sets no record. In all events, one course or the other is

simply Conley’s right under existing law. Conley might well lose

his Brady claim, whose assessment requires reconstructing a good

deal of trial history; but that is no excuse for depriving him of

the opportunity.

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