United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
order signed January 30, 2018, the court ordered movant,
Herbert Philip Anderson, and the government each to file a
memorandum containing all arguments and authorities, with
appropriate references to all pertinent parts of the record,
support of that party's position on the subject of
whether an evidentiary hearing of the kind contemplated by
the Fifth Circuit in its November 1, 2017 opinion and
judgment is required. See United States v. Anderson,
712 Fed.Appx. 383 (5th Cir. 2017). The court also gave each
party an opportunity to respond to the memorandum filed by
the other. Doc. 29. Having received and reviewed the
memoranda and responses, the court undertakes its
analysis as instructed by the Fifth Circuit.
memorandum opinion and order of October 6, 2014, the court
concluded that an evidentiary hearing was not required
because the motion and the files and the records of the case
conclusively showed movant was entitled to no relief. See
United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir.
1992). With regard to the ground now at issue, the court
found that movant presented no basis to conclude that the
government knowingly presented any false testimony that had a
reasonable likelihood of affecting the judgment of the jury.
See United States v. Aqurs, 427 U.S. 97, 103 (1976).
court first notes that the district court's denial of an
evidentiary hearing is reviewed on appeal for abuse of
discretion. United States v. Edwards, 442 F.3d 258,
264 (5th Cir. 2 006). The court of appeals will only grant a
hearing if the movant produced independent indicia of the
likely merits of his allegations. Id. Here, the
appellate court did not find an abuse of discretion. Rather,
it simply determined that the district court should consider
whether "Steven Adams' January 10, 2016 letter,
which was not before the district court, warrants [an
evidentiary hearing]." 712 Fed.Appx. at 3 87. Had the
court of appeals determined that the letter warranted a
hearing, presumably it would have ordered one. It did not. Thus,
the court considers whether the letter would have changed the
court's conclusion that movant was not entitled to an
evidentiary hearing as he was entitled to no relief as a
matter of law.
of the reasons discussed herein, the court concludes that the
addition of the letter to the record does not change the
court's determination that movant is not entitled to an
evidentiary hearing. In particular, the letter itself is too
questionable to amount to probative evidence of anything. The
genesis of the letter is extremely suspicious to say the
least.It appeared, seemingly out of the blue,
long after this court had ruled on movant's motion to
vacate, set aside or correct sentence under 28 TJ.S.C. §
2255, Doc. 21, and the Fifth Circuit had granted a
certificate of appealability on the issue of whether the
government knowingly used material, perjured testimony. There
is no reason such a letter could not have been submitted to
this court along with movant's § 2255 motion. Doc.
1. Of course, had movant acted diligently, he would have
obtained an affidavit or declaration.
document identified as "the letter" reflects that
it is "page 3 of 3" of some item purportedly sent
to movant's attorney, Stan Schwieger. Doc. 32 at 008,
016. No explanation has been offered for this notation or
where the other pages are or whether the page submitted
constitutes the entirety of the letter or only the last page.
The letter bears no salutation. Its language is most curious.
Given the grammatical errors and misspellings, it is
incredible that the purported author articulately says that
the Assistant United States Attorney "coached me on how
to implicate Andy on being present and involved in a drug
deal." Id. And, the letter appears to contain
the handwriting of at least two or more people. Notably, the
attorney's name and address and the date appear to have
been written by a different hand and a different writing
implement than the body of the letter.
has simply offered no rational explanation for any of the
questions surrounding the letter. But, even taking the letter
at face value, its substance does not entitle movant to a
hearing. The letter simply says, "I made up this
story" about movant "being present and involved in
a drug deal at Hammers [sic] with Medina." Doc. 32 at
016. The letter does not say that any of the rest of
Adams' trial testimony was false.
letter fails to provide probative evidence that the
government knowingly used material, perjured testimony from
Adams at trial. Not only does the record on which this court
relied in its initial ruling support the court's
conclusions, the current record would support the conclusion
that Adams did not give false trial testimony. For example, a
report of investigation regarding surveillance conducted June
5, 2009, submitted by movant in his reply to the
government's response to the § 2255
motion as Exhibit Riproves that: On June 5,
2009, officers observed movant and Gerry arrive
together at Gerry's residence in Bedford, Texas. Doc. 14
at ECF 382, 385-86. They saw Medina, a known methamphetamine
source, arrive at the house. Id. at ECF 382, 386.
They also saw Adams arrive at the house, where he was greeted
at the door by Ms. Nance, Id.
was just as Adams testified at trial. CR Doc. 895 at 102.
The investigative report is confirmed by the information
Adams provided in his proffer interview on September 22,
2009, attended by Adams, his attorney, government agents, and
the assistant United States Attorney handling the case, Fred
Schattman. Doc. 14 at ECF 371, 373-74. And it also is
confirmed by the facts to which Adams stipulated in his
factual resume, which he swore were true in open court at his
rearraignment on December 11, 2009. CR Doc. 92 8 at 58; CR
Doc. 3 83. Adams' attorney confirmed that the stipulated
facts were consistent with his understanding of the true
facts. CR Doc. 92 8 at 58.
trial evidence, including transcripts of conversations
between movant and Gerry, established that the June 5, 2009
transaction took place and that movant was at Gerry's
house as events transpired. See, e.g., CR Doc. 895
at 72, 76-77, 80, 82, 84-87.
trial, Adams was asked about a letter he wrote on August 30,
2009 (the "2009 letter"), which stated:
I, Steve Ray Adams, have known Mr. Anderson, otherwise known
as Andy, since March 2002. I have had the pleasure of meeting
Andy in his home and at his business, and at no time have I
ever witnessed Andy, or anyone around him, doing any drugs or
being involved in any illegal activity. To the best of my
knowledge, Andy is an upstanding citizen and a legitimate
CR Doc. 895 at 109-10. Adams explained that he wrote the 2009
letter because movant asked him to do it and "it was
like I didn't have much of a choice." Id.
at 105. Further, Adams thought the 2009 letter was going to
help movant make his bond. Id. at 106. In exchange
for the 2009 letter, movant promised to look out for Adams.
Id., The newly-produced letter does not recant any
of this testimony. It simply says that the 2009 letter was
2009 letter was admitted into evidence as defense Exhibit 9
at the trial. CR Doc. 8 95 at 107-08. The government and
movant each filed a copy of the 2009 letter in response to
the court's order signed April 19, 2018. Docs. 37 &
40. The handwriting on the 2009 letter, Doc. 39, bears no
resemblance in any manner to the ...