NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Nos. 19-1489 & 19-1667 ________________

RICHARD BALTER, Appellant

v.

UNITED STATES OF AMERICA

Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 18-cv-16681) District Judge: Honorable Jerome B. Simandle

Argued April 28, 2021

Before: SMITH, Chief Judge, PHIPPS and ROTH, Circuit Judges

(Opinion filed: May 28, 2021)

Richard Balter Petersburg FCI Medium P.O. Box 1000 Petersburg, VA 23804

Appellant Pro Se

Harrison P. Graydon (ARGUED) Duquesne University School of Law Federal Litigation Clinic 912-914 Fifth Avenue Pittsburgh, PA 15219

Adrian N. Roe 428 Boulevard of the Allies First Floor Pittsburgh, PA 15219

Counsel for Court Appointed Amicus Curiae

Steven G. Sanders (ARGUED) Mark E. Coyne Office of United States Attorney General 970 Broad Street Room 700 Newark, NJ 07102

Counsel for Appellee

OPINION *

ROTH, Circuit Judge

Richard Balter appeals the dismissal of his 8 U.S.C.§ 2255 Motion seeking to

vacate his convictions for murder for hire and wire fraud. Because we agree with the

District Court that his Motion was second or successive, we will affirm.

I

In 1994, Balter was sentenced to life imprisonment for the murder for hire of

Robert Cohen to collect on a $600,000 insurance policy on Cohen’s life. Cohen made

Balter the beneficiary of the policy, hoping to refortify their business relationship.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 Cohen’s company, Uneeda, owed approximately $600,000 to Balter’s company, NPP.

Balter claimed that this debt was undermining NPP’s financial stability. 1

In 1997, Balter filed a pro se § 2255 Motion, alleging ineffective assistance of

counsel. The motion was denied on the merits. In 2007, in response to a 2005 request,

the government returned two boxes of documents taken from NPP’s warehouse before

trial. Because Balter had become blind due to macular degeneration, 2 he recruited other

inmates to help him review the documents. Some of the documents allegedly show that

the insurance policy was Cohen’s idea, that Balter and Cohen had worked out a payment

plan, that NPP was financially stable, and that Balter would have acquired Uneeda if

Cohen had lived. Balter alleges that these documents undermined the government’s

financial-motive theory and were not included in the files counsel was permitted to

inspect before trial.

In 2018, Balter filed another pro se § 2255 Motion, raising a Brady claim based on

the documents. Before filing a second or successive § 2255 motion, a prisoner must

“move in the appropriate court of appeals for an order authorizing the district court to

consider the [§ 2255 motion].” 3 Under § 2255(h)(1), a successive motion is barred unless

it, inter alia, “contain[s] . . . newly discovered evidence that . . . would be sufficient to

1 See generally United States v. Balter,

(3d Cir. 1996). 2 See generally Balter v. United States, No. 09-1409,

(M.D. Pa. Apr. 7, 2014). 3

(b)(3)(A), 2255(h). 3 establish by clear and convincing evidence that no reasonable factfinder would have

found the movant guilty of the offense.” 4

The government argued that Balter’s motion was second or successive and moved

either to dismiss it or to transfer it to this Court so that Balter could seek permission to

file it. On February 27, 2019, the District Court did both. It granted the government’s

Motion to Dismiss Balter’s habeas motion “without prejudice” and at the same time

transferred Balter’s motion to this Court (Case No. 19-1489), pursuant to

. The government responded to the transfer, arguing that Balter’s motion did not

meet the gatekeeping requirements of

(h)(1). On March 26, 2019,

Balter moved to dismiss what he called the “appeal” in No. 19-1489, insisting that he did

not need our Court’s permission to file his motion because it was not second or

successive. We granted the dismissal of No. 19-1489 on April 4.

Meanwhile, on March 29, Balter appealed the District Court’s Order of February

27. That appeal is designated Case No. 19-1667. Balter again challenged the District

Court’s conclusion that his habeas motion was second or successive.

On September 4, 2020, a Motions Panel of this Court directed that counsel be

appointed as amicus curiae to assist Balter. In order to properly examine all issues before

us, on April 26, 2021, we reopened the appeal in No. 19-1489. Balter had had sent a

letter to the Court, stating that he had no objection to the reopening of No. 19-1489.

II

4

§ 2255(h)(1). 4 A.

As an initial matter, we have jurisdiction over Case No. 19-1667. Ordinarily, a

district court should dismiss a second or successive § 2255 motion for lack of

jurisdiction. 5 We have suggested, however, that in some circumstances a district court

may transfer the motion to this Court as though it were a motion seeking permission to

file a second or successive motion. 6 Although the government moved for dismissal or a

transfer, the District Court did both, dismissing the case “without prejudice” and

transferring it. Because the District Court dismissed the case, it could not also transfer it.

In order to resolve this conflict of dispositions, we will interpret the action taken by the

District Court to be a dismissal. Moreover, it is evident from Balter”s pro se brief that he

wishes to stand on his petition as presented. The order of dismissal by the District Court

was, therefore, final and appealable. 7

B.

Balter argues that § 2255(h) should not apply to Brady claims under the Supreme

Court’s decision in Panetti v. Quarterman. 8 Panetti, in turn, relied on Stewart v.

Martinez-Villareal. 9 In Stewart, a federal court denied as unripe a state prisoner’s “Ford

5

(b)(4). 6 Robinson v. Johnson,

(3d Cir. 2002) (“When a second or successive habeas petition is erroneously filed in a district court without the permission of a court of appeals, the district court’s only option is to dismiss the petition or transfer it to the court of appeals pursuant to

.” (emphasis added)). 7

(a); see also Goldblum v. Klem,

(3d Cir. 2007) (holding dismissal without prejudice is final and appealable where plaintiff stands on complaint). 8

(2007). 9

(1998). 5 claim,” a claim that a prisoner is not competent to be executed. The reason for the denial

was because Arizona had not yet issued the death warrant. The court denied the

prisoner’s other claims on the merits. When Arizona did issue the death warrant, the

state court denied the Ford claim on the merits. The prisoner filed a second-in-time Ford

claim in federal court. The Supreme Court held that, because the prisoner did “not

receive an adjudication of his [Ford] claim” when it was dismissed as unripe, “[t]here

was only one application for habeas relief” and the claim was not second or successive. 10

In Panetti, the Court extended Stewart to a case in which a prisoner failed to file a Ford

claim in his initial petition. 11

Balter argues that if the government continues to suppress evidence after trial,

there could be Brady claims that, like Ford claims, cannot be brought in an initial § 2255

Motion. Every circuit to address this issue, 12 however, has held that Stewart and Panetti

are limited to “the particular circumstances presented by a Ford claim.” 13 Ford claims,

unlike Brady claims, usually do not ripen until after an initial § 2255 motion is brought.

Moreover, § 2255(h)(1) already provides an exception for claims, like Balter’s proffered

Brady claims, based on (1) “newly discovered evidence” that (2) “would be sufficient to

U.S. at 644–45. 11 Panetti,

. 12 See Blackman v. Davis,

, 778–79 (5th Cir. 2018); In re Wogenstahl,

, 627–28 (6th Cir. 2018); Brown v. Muniz,

(9th Cir. 2018); In re Pickard,

, 1204–05 (10th Cir. 2012); Tompkins v. Sec’y, Dep’t of Corr.,

(11th Cir. 2009); Evans v. Smith,

, 322–23 (4th Cir. 2000). But see Scott v. United States,

(11th Cir. 2018); United States v. Lopez,

(9th Cir. 2009); Douglas v. Workman,

(10th Cir. 2009). 13

6 establish by clear and convincing evidence that no reasonable factfinder would have

found the movant guilty of the offense.” 14 Balter argues that applying § 2255(h)(1)’s

clear-and-convincing-evidence standard, rather than Brady’s more lenient materiality

standard, to Brady claims that could not be brought in an initial § 2255 motion is unfair.

But because § 2255(h)(1) applies only to claims based on “newly discovered evidence,”

Congress implicitly recognized that some claims that could not be brought sooner must

meet that higher standard. 15

In any event, we need not decide in this case whether § 2255(h) applies to the type

of hypothetical Brady claim identified by Balter. Even if we were to construe Panetti

broadly to apply to Brady claims that could not have been brought in an initial motion,

Balter has not shown that he could not bring his Brady claim in his initial § 2255 motion

in 1997. To allege that a claim could not have been brought sooner because of newly

discovered evidence, a prisoner must show that the evidence “objectively could not have

been discovered [earlier] through the exercise of due diligence.” 16 The due diligence

requirement “‘cannot be collapsed’ into ‘the merits of [the] Brady [claim]’ itself,” and

“where the record demonstrates that the defendant or defense counsel was aware of the

14

(h)(1). 15 Cf. Felker v. Turpin,

(1996) (upholding AEDPA’s gatekeeping standards); In re Dorsainvil,

(3d Cir. 1997) (explaining that § 2255 is not inadequate “merely because [a prisoner] is unable to meet the stringent gatekeeping requirements of” § 2255(h)). 16 E.g., In re Will,

, 542 (5th Cir. 2020). 7 potential Brady material but failed to pursue investigation of that ultimate claim,” he has

not been diligent. 17

The crux of Balter’s claim is an agreement between himself and Cohen. He

obviously knew that that agreement existed. He also knew that the government seized

the agreement and other documents from his business before trial. He told counsel that

“the [g]overnment took all of his business records from [his business’] warehouse, and

that within that mountain of papers should be proof that the [g]overnment’s theory of the

case was wrong.” 18 He was not diligent in recovering the agreement.

Although Balter vaguely alleges that counsel “was unable to locate [the

documents] when examining the boxes of records in the custody of the [g]overnment”

because they were “deliberately hidden so that inspection by counsel was not reasonably

calculated to turn them up,” he provides no details about whether he requested the

documents from the government, how counsel otherwise came to inspect the boxes, or

whether the documents were missing from the boxes or merely tucked between other

documents (as he alleges they were in 2007). Nor does he explain why he did not include

this claim in his initial § 2255 motion and waited over ten years to ask the government

what happened to the missing documents.

17 Bracey v. Superintendent Rockview SCI,

, 293–94 (3d Cir. 2021) (alterations in original) (quoting Johnson v. Dretke,

(5th Cir. 2006)). 18 Mem. in Support Mot. Vacate at 3, Dist. Ct. Doc. No. 1-1. 8 Because Balter has not shown that he was unable to present his claim earlier,

Panetti could not possibly apply here. Accordingly, Balter’s Motion is second or

successive, and he was required to seek our permission before filing.

III

For the above reasons, we will affirm the Judgment of Dismissal of the District

Court.

9