English v. U.S., 92-3627

• Decision Date: 13 July 1993
• Docket Number: No. 92-3627,92-3627
• Citation: 998 F.2d 609
• Parties: Dennis Laverne ENGLISH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 609

998 F.2d 609

Dennis Laverne ENGLISH, Appellant, v. UNITED STATES of America, Appellee.

No. 92-3627.

United States Court of Appeals,

Eighth Circuit.

Submitted April 14, 1993.

Decided July 13, 1993.

Edward J. Ennis, West Des Moines, IA, argued, for appellant.

Lester A. Paff, Asst. U.S. Atty., Des Moines, IA, argued (John E. Beamer, Asst. U.S. Atty., on the brief), for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and BEAM, Circuit Judge.

BEAM, Circuit Judge.

Dennis Laverne English appeals from the district court's denial of his 28 U.S.C. § 2255 habeas corpus petition. We affirm.

I. BACKGROUND

English was convicted of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), and of conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846. At trial, the chief evidence against English was the testimony of the arresting officers and of his co-conspirator, Terry Robinson. At the time of arrest, Robinson possessed a canister containing 15 rocks, or 4.9 grams of cocaine base. Officer White testified that English swallowed something as he was being arrested, despite an order to spit out whatever was in his mouth. Based on the combined testimony of the officers and Robinson, the district court found that English had swallowed a number of rocks of cocaine base. For sentencing purposes the district court concluded that, including the amount that he swallowed, English was responsible for five grams or more of cocaine base. This finding, in conjunction with English's prior drug conviction, triggered a ten-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B)(iii).

English appealed his convictions, and we affirmed. United States v. English, No. 90-2169, Mem.Op., 938 F.2d 185 (8th Cir. March 26, 1991) (per curiam) (unpublished). English then filed this habeas action. The district court ruled against English on all claims. English appeals.

II. DISCUSSION

English raises three claims in his habeas petition. First, he alleges that newly discovered evidence reveals that the government presented perjured testimony at trial and at sentencing. Second, he argues that the evidence proffered at his sentencing hearing was not sufficient for the court to find him responsible for more than five grams of cocaine base. Finally, he alleges constitutionally ineffective assistance of counsel at trial.

A. Newly Discovered Evidence

English claims that two sets of newly discovered evidence undermine the validity of his convictions. First he alleges that evidence discovered after trial reveals that Robinson's testimony was perjured. Second, English claims that newly discovered evidence of misconduct by the arresting officers warrants a new trial.

1. Co-conspirator's testimony

As support for his perjury contentions, English submitted affidavits to the district court from two of Robinson's cellmates. These affidavits alleged that Robinson told them that he lied about the ownership of the cocaine base while testifying in court. In addition English asserted that Robinson lied when he testified that the money in his possession at the time of his arrest was earned helping a friend move. As support for this second contention, English introduced evidence that Robinson's friend's "new address" was in fact a vacant lot. English alleged that Robinson's statement was therefore a falsehood and also alleged that had the government checked the veracity of Robinson's testimony they would inevitably have discovered the falsehood. The district court rejected this claim of newly discovered evidence, and denied English's motion for a new trial.

We review a district court's refusal to grant a new trial for abuse of discretion. United States v. Gustafson, 728 F.2d 1078, 1084 (8th Cir.), cert. denied, 469 U.S. 979, 105 S.Ct. 380, 83 L.Ed.2d 315 (1984). When newly discovered evidence is the ground for a section 2255 motion, the district court must apply a substantive standard that includes five prerequisites: (1) the evidence must have been discovered after the trial; (2) the failure to discover the evidence must not be attributable to a lack of diligence on the part of the petitioner; (3) the evidence must not be merely cumulative or impeaching; (4) the evidence must be material; and, (5) the evidence must be likely to produce an acquittal if a new trial is granted. Lindhorst v. United States, 658 F.2d 598, 602 (8th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 309 (1982).

A modified test is applied, however, when the newly discovered evidence involves a claim of perjury by prosecution witnesses. Under this relaxed standard, a petitioner need only prove "any reasonable likelihood that the false testimony could have affected the judgment of the jury." Id. (citations omitted); United States v. Runge, 593 F.2d 66, 73 (8th Cir.), cert. denied, 444 U.S. 859, 100 S.Ct. 123, 62 L.Ed.2d 80 (1979). English urges this court to employ the perjured evidence standard in reviewing the district court's denial of his section 2255 petition.

Before we can apply this relaxed standard, however, English must establish that the testimony was in fact perjured. In addition, he must prove that the prosecuting officers knew, or should have known, of the perjury at the time the testimony was presented. ¹ Lindhorst, 658 F.2d at 602. English has not met this burden.

English alleges that his co-conspirator, Robinson perjured himself with regard to the ownership of the cocaine. He alleges that Robinson again perjured himself when he testified that he had acquired the money found in his possession by helping a friend move. Even if we accept English's allegations of perjury as true, he could not prevail on this claim. He has not demonstrated the requisite knowledge on the part of the prosecutors.

It may well be true that Robinson lied about the source of the money found in his possession at the time of arrest. At the very least he misstated the address to which he helped his friend move. While the government may not turn a blind eye to doubts about the veracity of testimony presented by its witnesses, there is no obligation to investigate every collateral matter raised by a witness's trial testimony. Neither of the alleged perjury issues raised by English are material to a determination of whether or not English was engaged in a conspiracy to distribute cocaine base. ² Both instances of alleged perjury are at most impeaching. Therefore, the prosecutors breached no duty and the district court did not err in concluding that English could not prevail on this claim. Moreover, the defense attorney vigorously attacked Robinson's credibility at trial and the district court instructed the jury that Robinson had received a plea agreement in exchange for his testimony. Thus, we cannot conclude that English suffered any prejudice.

2. Police Misconduct

English also alleges that instances of official misconduct by Officers White and Sorenson, two of the four arresting officers, constitute newly discovered evidence warranting a new trial. He brings to the court's attention the facts that subsequent to English's trial, Officer White was accused of theft of evidence, and Officer Sorenson was charged with perjury and altering affidavits of probable cause. Officer Sorenson pled guilty to one count of felony falsification of public documents, while Officer White was acquitted after a jury trial. The charges brought against the two officers did not stem from English's case and English does not allege official misconduct in his arrest or in his subsequent trial.

At trial, Officer White testified that as he attempted to arrest English, he saw English put something into his mouth and swallowed it. Since no cocaine base was found on English, and no cocaine was found at the scene, Officer White testified that he believed that English had swallowed some cocaine base. The district court used White's testimony, in conjunction with the evidence of the 4.9 grams of cocaine base found in Robinson's possession, to conclude that English was responsible for five or more grams of cocaine base. Therefore the district court imposed the requisite statutory minimum sentence of ten years imprisonment. See 21 U.S.C. § 841(b)(1)(B)(iii).

Officer White's testimony was corroborated by Robinson and by Officer Sorenson. Had Officer Sorenson been the only witness to the incident, his subsequent guilty plea for misrepresenting drug quantities to a court might cast sufficient doubt upon the veracity of his testimony to warrant a new trial, or at least a new sentencing hearing. However, Officer Sorenson's testimony was cumulative with the testimony of the other officers. Therefore, the evidence of his subsequent guilty plea is mere impeaching evidence and cannot be grounds a new trial. United States v. Estabrook, 774 F.2d 284, 290 (8th Cir.1985).

Officer White, the officer whose testimony was critical to establishing the quantity at issue in English's case, was acquitted of the charges against him. Furthermore, the charges against Officer White, though constituting official misconduct, did not involve perjury or misrepresentation of drug quantities to the court. Therefore we cannot find that the newly discovered evidence concerning Officer White would be likely to produce an acquittal if a new trial is granted....