Prince v. Lizarraga

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petition for Rehearing and Rehearing En Banc

Brief filed: 07/02/2018


Prince v. Lizarraga

9th Circuit Court of Appeals; Case No. 16-55418

Prior Decision

2018 WL 2110057 (9th Cir. May 8, 2018)


The panel opinion guarantees that victims of prosecutorial misconduct will be denied justice for no fault of their own. The panel decision punishes habeas petitioners for not knowing what they could not know. Under the panel rule, the stringent second-and-successive standard applies to later-brought Brady claims even if the exculpatory evidence was not known at the time of the initial petition. The panel opinion creates perverse incentives for both prosecutors and petitioners’ counsel. The panel opinion punishes petitioners for the misconduct of prosecutors, and creates incentives for prosecutors to continue to withhold evidence until an initial federal petition is on the books. Such an unjust rule – one that punishes victims of prosecutorial misconduct for the mistakes of the perpetrators – could not have been what the drafters of the Antiterrorism and Effective Death Penalty Act (AEDPA) intended.


Rohit D. Nath, Susman Godfrey L.L.P., Los Angeles, CA

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