Case: 19-50837      Document: 00515558157         Page: 1    Date Filed: 09/09/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 19-50837                      United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                                                        September 9, 2020
In re: BRANDON BERNARD,
                                                                          Lyle W. Cayce
              Movant                                                           Clerk




                          Motion for an Order Authorizing
                      the United States District Court for the
                       Western District of Texas to Consider
                       a Successive 28 U.S.C. § 2255 Petition


Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Federal prisoner Brandon Bernard moves for authorization to file a
successive 28 U.S.C. § 2255 petition, or alternatively, to recall the mandate in
a previous decision. We deny the motion.
       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
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, 

, 471–73 (5th
Cir. 2002). After his conviction and sentence were affirmed on direct appeal,
Bernard filed his first Section 2255 habeas petition. The district court denied


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
   Case: 19-50837       Document: 00515558157         Page: 2     Date Filed: 09/09/2020


                                       No. 19-50837
the petition and we denied a certificate of appealability. See United States v.
Bernard, 

(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,

(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, 

, 

(1963); and (2) presented false
testimony at trial in violation of Napue v. Illinois, 

, 

(1959). The district court again construed the motion as a successive petition
but transferred it to this court pursuant to 28 U.S.C. § 1631. 1
       In a separate motion, Bernard moves for authorization to file a
successive Section 2255 petition, or alternatively, to recall the mandate in our
previous decision denying Bernard a COA on his initial 2255 petition. We
address each request in turn.
       To file a successive habeas petition pursuant to Section 2255(h)(1),
Bernard must show that his petition relies on “newly discovered evidence that,
if proven and viewed in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable factfinder would
have found the movant guilty of the offense.” Bernard, however, contends only
that the newly discovered evidence would “raise[] grave doubt about his death
sentence”; he does not challenge the evidence of his guilt. As he concedes, this
court has held that Section 2255(h)(1) does not permit such petitions. See In


       1 The court originally dismissed that motion for lack of jurisdiction but later amended
its order and transferred the motion to this court. The appeal of the transfer order is not
considered here.
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                                       No. 19-50837
re Webster, 

, 257 (5th Cir. 2010) (holding that Section 2255(h)(1)
disallows successive petitions that do “not assert that newly discovered
evidence would negate [the movant’s] guilt of the offense of which he was
convicted . . . .”); see also Thompson v. Davis, 

, 458, n.65 (5th Cir.
2019).      Bernard therefore fails to satisfy the criteria set forth in
Section 2255(h)(1). 2
       Bernard alternatively requests that this court recall the mandate in its
previous decision and “remand to the district court with instructions to treat
the instant Brady allegations as a supplement to his prior prosecutorial
misconduct claim.” Although Bernard frames his Brady and Napue claims as
an extension of his prior prosecutorial misconduct claim, the claims were not
raised previously, and “this court may not recall its mandate to consider a
claim that was not before it” during the original proceedings. In re Kunkle,

, 685 n.2 (5th Cir. 2005). Moreover, even if Bernard raised his
Brady and Napue claims in his prior petition, he must still meet the
requirements for filing a successive petition, which, as we have explained, he
cannot do.      See id.; see also Calderon v. Thompson, 

, 553,

, 1500 (1998) (“[A] prisoner’s motion to recall the mandate on
the basis of the merits of the underlying decision can be regarded as a
successive petition.”). There is no basis to recall the mandate.




       2 Even if Section 2255(h)(1) allowed Bernard to challenge his sentence, Bernard
cannot establish that this evidence is “newly discovered.” The factual predicate for Bernard’s
claims is that the government withheld information describing his role in the gang of which
he was a member and presented false testimony as to that information. Bernard offers no
explanation why he would not have known what his role in his own gang was. See In re
Davila, 

, 185 (5th Cir. 2018) (denying motion to file successive petition when the
applicant “fail[ed] to provide any explanation as to why [the court] should not arrive at the
most obvious conclusion: that he has always been on notice about the underlying factual
predicate for his new claim because he himself would know whether he had taken drugs on
the day of the murders . . . .”). Indeed, Bernard all but admits he had such knowledge.
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                                No. 19-50837
      For the foregoing reasons, Bernard’s motion for authorization to file a
successive habeas petition, or alternatively, to recall the mandate is DENIED.




                                                       Certified as a true copy and issued
                                                       as the mandate on Sep 09, 2020
                                                       Attest:
                                                       Clerk, U.S. Court of Appeals, Fifth Circuit




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