United States v. Hackley , 164 F. App'x 301 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6025
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILBERT HACKLEY, JR., a/k/a Butch,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (CR-83-107)
Argued: November 29, 2005 Decided: January 4, 2006
Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Steven H. Goldblatt, Director, GEORGETOWN UNIVERSITY LAW
CENTER, Appellate Litigation Program, Washington, D.C., for
Appellant. Richard Daniel Cooke, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee. ON BRIEF: Kathy J. Huang, Student Counsel,
Nathan J. Novak, Student Counsel, GEORGETOWN UNIVERSITY LAW CENTER,
Appellate Litigation Program, Washington, D.C., for Appellant.
Paul J. McNulty, United States Attorney, Michael J. Elston,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Wilbert E. Hackley brings a collateral attack under 28 U.S.C.
§ 2255 (2000) to his conviction on charges arising out of his
participation in a murder during a prison riot. Hackley relies on
allegations by fellow inmates who suggest they told the government
that Hackley was not involved in the murder and that the government
pressured them to remain silent, in violation of Brady v. Maryland,
373 U.S. 83, 87 (1963). The district court denied Hackley’s
request for an evidentiary hearing. We affirm because Hackley
cannot show that “there is a reasonable probability that the
suppressed evidence would have produced a different verdict.”
Strickler v. Greene, 527 U.S. 263, 281 (1999).
I.
On April 20, 1984, a jury found petitioner Wilbert E. Hackley
and his codefendants guilty on charges stemming from their
involvement in a prison riot and the murder of Gregory Gunter. It
convicted Hackley on four counts: murder, 18 U.S.C. § 1111 (2000),
attempting to cause and assist in a mutiny and riot, id. § 1792,
conveyance of a weapon within a federal penal institution, id.
§ 1791, and assaulting and impeding an officer of a United States
penal institution, id. § 111. On May 1, 1984, the district court
sentenced Hackley to life in prison and three consecutive ten-year
sentences for his crimes. This court affirmed his conviction on
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direct appeal, noting that “evidence of guilt as to each defendant
and each count was overwhelming.” See United States v. Hackley,
No. 84-5149(L), slip op. at 9 (4th Cir. Apr. 24, 1985).
Inmates murdered Gunter during a riot at the Petersburg,
Virginia Federal Correctional Institution on December 25, 1982.
Hackley was an inmate at the prison and Gunter was a correctional
officer and construction and maintenance foreman. The riot started
in the prison dining hall when inmates from New York began fighting
with inmates from the District of Columbia. Correctional officers
rounded up the New York inmates and escorted them out of the dining
hall into the prison compound. As they were leaving, a New York
inmate cast a concrete urn through a dining hall window. The
District of Columbia inmates subsequently armed themselves with
items appropriated from the prison kitchen and pursued the New York
inmates through the broken window.
Gunter, who was off duty at the time, was radioed about the
disturbance and entered the compound. He attempted to stop the
District of Columbia inmates, but six to eight of them attacked
him. An inmate struck him in the head with a three-foot long soup
paddle, and other inmates beat and stabbed him. The medical
examiner noted that Gunter was stabbed eight times and had blunt-
impact injuries on his face consistent with the soup paddle. He
died of his wounds.
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Numerous correctional officers present during the riot either
testified directly that Hackley wielded the soup paddle against
Gunter or offered corroborating support for that conclusion.
Officers Donnie Smith, J.R. Randle, and Hulon Willis had an
unobstructed view of the unfolding events from a cellblock facing
the compound. Smith identified Hackley as the inmate who hit
Gunter with the soup paddle. Randle, who had known Hackley by
sight and name before the riot, also testified that Hackley struck
Gunter with a soup paddle. Willis could not recognize Hackley as
the perpetrator, but he noted that Randle identified Hackley during
the attack. Officer Robert Lagoda did not witness the attack, but
he did see Hackley carrying an aluminum paddle in the compound.
Officer Freddie Mercado was in the compound during the incident,
and identified Hackley as an attacker who carried a paddle.
Officer Paul McCauley, also in the compound, testified that he saw
an inmate hit Gunter with a soup paddle, but he did not have a
clear view of the perpetrator. Finally, Officer Chauncey Jones
testified that he saw Hackley hitting Gunter with a silver weapon
that was consistent with the paddle.
Several inmates testified similarly as to Hackley’s
involvement. Both Hugh Jackson and Carroll Fortun attested that
they were in the compound during the attack and saw Hackley strike
Gunter with a paddle. Ronald Kelly did not see the attack on
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Gunter, but testified that he saw Hackley standing over Gunter
after Gunter had collapsed to the ground.
On April 4, 2000, sixteen years after his conviction, Hackley
filed a petition in Pennsylvania under 28 U.S.C. § 2241 (2000).
His petition was eventually transferred to the Eastern District of
Virginia and treated as one under § 2255. On July 8, 2002, Hackley
provided an amended § 2255 motion. The district court determined
that Hackley’s pro se motion alleged two prosecutorial misconduct
claims based on Brady v. Maryland, 373 U.S. 83 (1963), and an
actual innocence claim. The evidence in his petition included a
letter from inmate Ronald Kelly; affidavits from Michael Anthony
Hood and Ken Anderson, two inmates present during the riot who did
not testify at the original trial; and newspaper articles about
Officer Jones’s conviction for beating inmates after the riot.
Ronald Kelly wrote a letter to a federal judge in the state of
Washington on April 16, 1990, that recanted his testimony six years
after the trial. Kelly noted that after the riot he could not
identify Hackley as an attacker in a photographic spread, but
conceded the point when an FBI agent held up Hackley’s picture and
said Hackley was present. Kelly also stated that he told Assistant
U.S. Attorney George Metcalf that other inmates, including Hugh
Jackson, had fabricated their testimony. Metcalf allegedly
threatened him in response to these allegations. Hackley received
a copy of this letter in 1990. He sent it to his grandfather where
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it was lost and not recovered until November 1999. His first use
of the letter was in this petition.
Two former inmates, Michael Anthony Hood and Ken Anderson,
provided affidavits on June 17, 2002, and August 14, 2002,
respectively, that gave Hackley an alibi during Gunter’s murder.
Hood summarily asserted that he witnessed the murder and that
Hackley was absent, but he did not indicate the inmates
responsible. Both Anderson and Hood averred that Hackley was
inside Virginia Hall, a housing unit separated from the murder
scene, during the prison riot. Anderson allegedly spoke with
Hackley a half-hour into the riot. After the riot, Hood stated
that he told Officer Jones that Hackley was not involved, but Jones
beat him until he retracted his statements and implicated Hackley.
Hood asserts that fear prevented him from coming forward with this
information sooner, and Anderson noted that he was unaware Hackley
was convicted of the Gunter murder until 2002.
The district court denied all grounds of relief on November 4,
2003, without an evidentiary hearing. It initially noted that the
one-year statute of limitations barred Hackley’s first Brady claim,
which was based on the Kelly letter. See 28 U.S.C. § 2255. It
then concluded that Hackley’s second Brady claim, based on the Hood
affidavit, failed on the merits, because Hackley could not meet the
materiality requirement necessary for such a claim. See Strickler
v. Greene, 527 U.S. 263, 281 (1999). The district court also
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dismissed Hackley’s actual innocence claim, which was based on all
of his new evidence, because he failed to prove that no reasonable
jury would have convicted him if it took into account the new
evidence. See Schlup v. Delo, 513 U.S. 298, 327 (1995).
Hackley subsequently filed a request for a certificate of
appealability (COA), as required by 28 U.S.C. § 2253(c)(1)(B). The
district court did not issue a COA for either Hackley’s first Brady
claim or his actual innocence claim. It did, however, grant
Hackley a COA as to the second Brady claim, based on the Hood
affidavit. On July 27, 2004, we rejected Hackley’s application to
expand the COA. Hackley appeals his certified claim and also
requests that we reconsider our previous refusal to enlarge the
COA.
II.
Hackley first argues that the district court erred in denying
an evidentiary hearing on the Brady claim stemming from the Hood
affidavit. A district court can deny a § 2255 motion without a
hearing if the record conclusively shows the prisoner is not
entitled to relief. See 28 U.S.C. § 2255.
Under Brady, the government violates due process when it fails
to provide a defendant with material exculpatory evidence. See
Strickler, 527 U.S. at 280; Brady, 373 U.S. at 87. In order to
prove a Brady violation, the defendant has to meet three
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requirements: (1) the evidence must be favorable to the accused,
(2) the government must have suppressed it, and (3) the defendant
must suffer prejudice. See Strickler, 527 U.S. at 281-82.
To meet the prejudice prong, the defendant has to show that
the suppressed evidence is material. Evidence is material “if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different.” Strickler, 527 U.S. at 280 (internal quotation
marks omitted). In determining whether a reasonable probability
exists, courts consider “whether the favorable evidence could
reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict.” Id. at 290 (internal
quotation marks omitted).
We assume without deciding that Hackley’s claim based on the
Hood affidavit satisfies the first two Brady requirements and turn
to materiality.1 Hackley argues that in assessing materiality we
should consider the Kelly letter as evidentiary support for the
Hood affidavit even though, standing alone, it would be time-
barred. It is far from certain that we can consider the Kelly
letter at all given that Hackley discovered it ten years before he
1
The district court found this claim was timely filed because
Hackley could not have discovered the facts supporting it prior to
June 17, 2002. See 28 U.S.C. § 2255. We assume it is timely.
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filed a claim. But even assuming we can, Hackley’s Brady claim
still falls short of satisfying materiality.2
As this court made clear on direct appeal, the evidence
against Hackley on all counts was “overwhelming.” See Hackley, No.
84-5149(L), slip op. at 9. Considering the new evidence, the
government’s case against Hackley is not put in “such a different
light as to undermine confidence in the verdict.” Strickler, 527
U.S. at 290 (internal quotation marks omitted); see also United
States v. Ellis, 121 F.3d 908, 918 (4th Cir. 1997) (noting that
courts do not ignore other evidence of guilt presented at trial in
assessing materiality). The key government witnesses who place
Hackley at the murder scene or with the paddle are unaffected by
the new evidence. Officers Smith and Randle identified Hackley as
the attacker who hit Gunter with a soup paddle. Officer Mercado
similarly testified that Hackley was an attacker who had a paddle.
Officer Lagoda saw Hackley in the compound with a paddle during the
riot. And inmate Fortun testified that he saw Hackley strike
Gunter. Against these numerous eyewitness accounts, Hood’s terse
statement that Hackley was not in the compound and Kelly’s letter
undermining the credibility of inmate witnesses pale in comparison.
2
Hackley does not contend that the government suppressed the
information in the Anderson affidavit. That affidavit is thus not
Brady material and does not support Hackley’s Brady claim.
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Moreover, the Hood affidavit is of questionable reliability.
Although Hood now provides Hackley with an alibi -- that Hackley
was in Virginia Hall -- Hackley does not contend that he advanced
this theory at trial. Nor has Hackley provided any indication as
to why he did not present witnesses to testify as to his location
in Virginia Hall. Hackley would have known others were around him
if he truly was in Virginia Hall at the time of the murder.
Anderson, for example, allegedly spoke with him in Virginia Hall
during the riot. As a separate matter, Hood’s long delay in coming
forward casts further doubt on his credibility. Hood suggests that
he was afraid of Officer Jones who allegedly beat him, but, as the
district court noted, he was transferred away from Jones before he
presented his affidavit. Finally, Hood’s statements come almost
twenty years after the fact, and his memory as to the events that
occurred is therefore less reliable.
The Kelly letter also does little to put the original verdict
in a different light. See Strickler, 527 U.S. at 290. The
government has provided a sworn affidavit in the record from
Assistant U.S. Attorney Metcalf that disputes Kelly’s assertions.
Metcalf averred that Kelly’s accusations were untrue and that he
had no knowledge that any inmate falsely testified. See also Evans
v. United States, No. 83-00107-02-R, slip op. at 4 (E.D. Va. May
22, 1995) (relying on Metcalf’s affidavit to reject the § 2255
petition of Hackley’s codefendant, also predicated on the Kelly
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letter). Further, Kelly’s letter effectively recants much of his
trial testimony, and recantation statements are necessarily viewed
with considerable skepticism. See, e.g., United States v. Johnson,
487 F.2d 1278, 1279 (4th Cir. 1973) (per curiam) (recantation
testimony “looked upon with the utmost suspicion”) (internal
quotation marks omitted); see also Wadlington v. United States, 428
F.3d 779, 784 (8th Cir. 2005) (same); United States v. Ogle, 425
F.3d 471, 478 (7th Cir. 2005) (same).
In short, Hackley’s contentions would require the jury to
ignore the “overwhelming” evidence of guilt and to rely on Kelly’s
and Hood’s suspect eleventh-hour statements. As such, these
belated statements simply cannot satisfy Hackley’s burden of
proving there is a reasonable probability that the jury verdict
would have been different if they had been considered. Strickler,
527 U.S. at 280. Hackley has thus failed to prove materiality.3
3
Hackley also argues that we should reconsider our previous
refusal to issue a COA for his actual innocence claim. But that
claim is even more difficult to bring than a Brady claim, as it
requires the petitioner to prove that “no reasonable juror would
have convicted him in the light of the new evidence.” Schlup, 513
U.S. at 327. Even with all of Hackley’s newly proffered evidence,
a reasonable juror could most certainly still have convicted him.
We therefore decline to issue a COA on this claim.
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III.
For the foregoing reasons, the district court did not err in
dismissing Hackley’s § 2255 petition without an evidentiary
hearing.
AFFIRMED
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