Raymon Glenn Overdear v. United States , 212 F. App'x 930 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 29, 2006
No. 05-13443 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos.
97-08050-CV-B-M
94-00106-CR-B-M
RAYMON GLENN OVERDEAR,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(December 29, 2006)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Raymon Glenn Overdear appeals the denial of his motion to vacate, set
aside, or correct his sentence filed under 28 U.S.C. § 2255. The district court
granted a certificate of appealability for Overdear limited to the following issue:
“Whether the Government knowingly used perjured/false testimony of a witness,
James Tony Hunter, such that he was denied the constitutional right to due
process.”
Specifically, Overdear claims that the government permitted a witness at his
trial to testify falsely that a drug transaction involving Overdear occurred in late
June or early July of 1989, which helped establish that an overt act had occurred
within five years of the date of the superceding indictment. Overdear argues that
the same witness gave contradictory testimony in the earlier trial of another drug
dealer not implicated in the case before us.
When reviewing a district court’s denial of a § 2255 motion, we review
questions of law de novo and findings of fact only for clear error, Varela v. United
States, 400 F.3d 864, 867 n.3 (11th Cir. 2005), keeping in mind that the movant
has the burden of establishing that he is entitled to relief under § 2255, Barnes v.
United States, 579 F.2d 364, 365 (5th Cir. 1978).
Presentation of testimony that the prosecution knows or should know is
false may violate a defendant’s right to due process. Giglio v. United States, 405
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U.S. 150, 153, 92 S. Ct. 763, 763 (1972); Napue v. Illinois, 360 U.S. 264, 268–70,
79 S. Ct. 1173, 1177 (1959). The false testimony, however, must be “material” for
its presentation to violate due process. Grossman v. McDonough, 466 F.3d 1325,
1342 n.14 (11th Cir. 2006). False testimony is “material” if it “could . . . in any
reasonable likelihood have affected the judgment of the jury.” Giglio, 405 U.S. at
153, 92 S. Ct. at 763.
However, “[a] mere claim that a witness gave inconsistent testimony is not
enough to charge the prosecution’s knowing use of false testimony; it may well be
that the witness’ subsequent statements were true, in which event the claim of
inconsistency is not a constitutional objection.” Price v. Johnston, 334 U.S. 266,
288, 68 S. Ct. 1049, 1062 (1948), overruled on other grounds by McCleskey v.
Zant, 499 U.S. 467, 111 S. Ct. 1454 (1991).
We held in Hays v. State of Alabama, 85 F.3d 1492, 1499 (11th Cir. 1996),
that due process was not violated in that case by the presentation of a co-
conspirator’s testimony, even though it was inconsistent with his own testimony in
an earlier proceeding. We explained that:
[T]here has been no showing that Knowles’s later, rather than earlier,
testimony was false; and the circumstances of Knowles’s testimony
. . . indicate it is likely the former was untrue. Because [the movant]
can cite no case holding that a plea testimony must be consistent with
later testimony, use of [co-conspirator’s] testimony did not violate due
process.
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Id. at 1499.
We conclude that Overdear has not established his entitlement to § 2255
relief. He has not proven that Hunter’s testimony was false. Nor has he proven
that, even if false, the testimony willfully made, rather than the “result of
confusion, mistake, or faulty memory,” see Diaz, 190 F.3d at 1256 (citation
omitted), or that it was “material,” see Giglio, 405 U.S. at 153, 92 S. Ct. at 763.
As the magistrate judge noted, the record here does not compel a finding that
Hunter’s testimony in the two trials was inconsistent. His testimony in the first
trial can reasonably be interpreted as an acknowledgment that, although the
June/July 1989 trip did not result in the transportation of any drugs, a later trip
soon thereafter did. This finding is further supported by the testimony of another
drug dealer offered in this case who testified that he “did a deal” with Hunter in
July or August of 1989. Additionally, Hunter provided a statement on August 29,
1991, only two years after the June/July trip, that the last time he sold drugs to
Overdear was in August of 1989.
Hunter’s testimony at the two trials can be consistently interpreted as to the
material fact that he delivered marijuana to Overdear in Alabama during July or
August of 1989, satisfying the five-year statute of limitations, which ran from the
date of the superceding indictment on June 8, 1994. Hunter had no reason to lie
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about one date in favor of the other, and any difference between the delivery date
being in late June or being later than that is immaterial. There is no way that any
difference between the dates would, “in any reasonable likelihood have affected
the judgment of the jury.” See Giglio, 405 U.S. at 153, 92 S. Ct. at 763.
Accordingly, we affirm the district court’s denial of the § 2255 motion.
AFFIRMED.
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