THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. NOS. 5:08-CV-04012-RDR, 5:08-CV-04013-RDR, 5:00-CR-40104-RDR-1, 5:00-CR-40104-RDR-2)
The opinion of the court was delivered by: Hartz, Circuit Judge.
United States Court of Appeals
Elisabeth A. Shumaker Clerk of Court
Before HARTZ, O'BRIEN, and HOLMES, Circuit Judges.
Defendants William L. Pickard and Clyde Apperson were convicted of drug-related crimes in the United States District Court for the District of Kansas. An important witness for the prosecution was informant Gordon Todd Skinner, a criminal associate of Defendants. After the convictions were affirmed on appeal, see United States v. Apperson, 441 F.3d 1162 (10th Cir. 2006), Defendants filed motions for relief under 28 U.S.C. § 2255 claiming, among other things, that the prosecution had violated their rights under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), by suppressing evidence of Skinner's criminal and informant background. The district court rejected the claims. See United States v. Pickard, No. 00-40104-01/02-RDR, 2009 WL 939050 (D. Kan. Apr. 6, 2009). Defendants applied for certificates of appealability (COAs) to appeal the district court's decision, but we denied their applications. See United States v. Pickard, 396 F. App'x 568 (10th Cir. 2010); 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of § 2255 relief). They also filed district-court motions under Fed. R. Civ. P. 60(b) to set aside the court's judgment in the § 2255 proceedings, raising multiple claims. The claims relevant to this appeal are that evidence newly discovered by them through Freedom of Information Act (FOIA) requests shows (1) that the prosecution violated its Brady/Giglio duties at trial and (2) that the prosecution made a false statement in the § 2255 proceedings that forestalled the discovery from which they could have established that there had been a Brady/Giglio violation at trial.
The district court ruled that the claims of prosecutorial misconduct amounted to second-or-successive claims under § 2255, which it could not consider without authorization from this court, see 28 U.S.C. §§ 2244(b)(3)(A); 2255 (b). It therefore transferred the claims here. See In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (district court may transfer rather than dismiss the matter if "it is in the interest of justice to do so"). We agree with the district court that Defendants' claims of Brady/Giglio violations at trial are second-or-successive claims; and because Defendants have not established the requisites for authorizing a second-or-successive claim, we deny authorization. On the other hand, Defendants' claims that prosecutorial misconduct in the § 2255 proceedings affected the integrity of those proceedings are proper Rule 60(b) claims; and we remand those claims to the district court for resolution.
In 2003 Defendants were convicted of conspiracy to manufacture lysergic acid diethylamide (LSD), see 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and possession with intent to distribute LSD, see 21 U.S.C. § 841(a)(1) and (b)(1)(A).
We affirmed the convictions on direct appeal. See Apperson, 441 F.3d 1162. In 2008 Defendants filed motions under 28 U.S.C. § 2255 to set aside their convictions and sentences. The "centerpiece" of these motions was the claim that "the government violated its Brady/Giglio obligations by suppressing the criminal and informant backgrounds of certain witnesses, including Gordon Todd Skinner." Pickard, 2009 WL 939050, at *5. "[T]he majority of this claim [was] directed at [impeachment and exculpatory] evidence that was purportedly suppressed by the government concerning Skinner." Id. at *6. In particular, Defendants argued that the government had failed to disclose relevant files from agencies other than the federal Drug Enforcement Administration (DEA). In response, the prosecution asserted (1) that no agency other than the DEA was involved in the LSD investigation and (2) that the prosecution was not aware of Skinner's involvement with any agency besides the DEA. Defendants nevertheless sought an order requesting the government to identify the federal agencies other than the DEA that had participated in their case. The district court denied these requests, stating that Defendants "have failed to point to any evidence showing any involvement by [agencies other than the DEA] in the investigation of this case." Aplee. Supp. App. at 159 (Mem. & Order at 41, United States v. Pickard, No. 00-40101-01/02-RDR (D. Kan. Apr. 6, 2009)). It ultimately denied the § 2255 motions, ruling that the new evidence presented to the court by Defendants was cumulative and would not have caused a different result at trial. We declined to issue COAs for Defendants to appeal the denial. See Pickard, 396 F. App'x 568.
While awaiting our ruling on the district-court denial of their § 2255 motions, Defendants filed in district court two Rule 60(b) motions to set aside the denial of their § 2255 motions. The first motion (Doc. 637) listed five matters that the district court had allegedly failed to consider. It also contended that the district court should reconsider Defendants' Brady/Giglio and prosecutorialmisconduct claims in light of newly discovered evidence referenced in their second Rule 60(b) motion (Doc. 639).
The second 60(b) motion alleged that evidence of "substantive undisclosed FBI and IRS records" newly obtained through Defendants' FOIA requests demonstrated that the prosecution had committed fraud because the FOIA documents showed that federal agencies other than the DEA were involved in investigating Defendants' drug-related activities. Aplee. Supp. App. at 207 (Rule 60 (b)(2) & 60(b)(3) Mots. Based on Newly Discovered Evid. of Non-Disclosure of Records at 1, Pickard, No. 00-40104-01/02-RDR (D. Kan. Apr. 5, 2010)). They argued that these agencies might have additional undisclosed evidence that could have been used at trial to impeach Skinner.
The district court ruled that the first five claims in Doc. 637 were proper under Rule 60(b) because they challenged the integrity of the habeas proceedings; but it rejected them as moot or without merit. Defendants sought to appeal this ruling, but we denied a ...