USA v. Reedy


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USA v. Reedy Doc. 0 Case: 09-10009 Document: 00511222251 Page: 1 Date Filed: 09/01/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-10009 S u m m a r y Calendar September 1, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e , versu s T H O M A S REEDY, D e fe n d a n t -A p p e lla n t . A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 4:07-CV-24 U S D C No. 4:00-CR-54-1 B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* T h o m a s Reedy, federal prisoner # 25673-177, was convicted by a jury of 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-10009 Document: 00511222251 Page: 2 No. 09-10009 Date Filed: 09/01/2010 v a r io u s counts relating to child pornography. In his 28 U.S.C. 2255 motion, he a r g u e d in relevant part that he had learned through new evidence that the gove r n m e n t violated his due process rights by presenting a trial exhibit that had b e e n fraudulently manufactured by prosecution witnesses. The district court det e r m in e d that that claim was procedurally barred, because Reedy could have r a is e d it at trial or on direct appeal. This court granted a certificate of appealab ilit y ("COA") on the questions "[w]hether Reedy has established cause for his fa ilu r e to raise this issue on direct appeal . . . and . . . [w]hether Reedy is able to e s t a b lis h that the presentation at trial of the purportedly manufactured exhibit r e s u lt e d in prejudice to Reedy." We also granted a COA on the question whether t h e district court erred in failing to hold an evidentiary hearing with respect to t h is claim. B e fo r e this court, Reedy seeks to supplement the record with exhibits that h e did not present in the district court, comprising a June 2007 magazine article a n d two affidavits obtained in January 2010. "An appellate court may not cons id e r new evidence furnished for the first time on appeal and may not consider fa c t s which were not before the district court at the time of the challenged rulin g ." Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). As a result, Reedy's motion to supplement is DENIED. O n appeal, Reedy asserts that he has established cause for his procedural d e fa u lt , because he is relying on a 2005 magazine article that examined investig a t io n s and trials occurring in Great Britain in the wake of his conviction. He m a in t a in s that he is unable to access newer technologies and that without the in fo r m a t io n provided in that article, he could not have discovered earlier that t h e trial exhibit was fraudulent. A review of the magazine article in question refle c t s that the author visually ascertained discrepancies in the exhibit and corr o b o r a t e d his findings by considering a public access website created before Reed y 's trial that provided archives of webpages. There is no indication that the purported falsity of the exhibit required 2 Case: 09-10009 Document: 00511222251 Page: 3 No. 09-10009 Date Filed: 09/01/2010 o t h e r technological advances, and Reedy's conclusional assertion that he needed a c c e s s to such computing improvements is insufficient to warrant relief. See K o c h v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990). Reedy does not explain why h e was unable to conduct a similar visual inspection of the exhibit at the time o f trial. Although he contends that he was unaware of the existence of the archiv a l website until he read the 2005 article, he has not established that "the factua l . . . basis for the claim was not reasonably available" at the time of trial. Unite d States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996). Because Reedy has not established "that `some objective factor external to t h e defense' prevented him from raising" the claim, he has not established cause t o overcome the procedural bar. Id. (citation omitted). We thus need not address w h e t h e r he has established that he will suffer prejudice as a result of imposing t h e bar. See United States v. Frady, 456 U.S. 152, 168 (1982). Reedy maintains that his conviction was the result of a miscarriage of just ic e and that he is actually innocent. Although a claim of miscarriage of justice m a y constitute an exception to the cause-and-prejudice test, the evidence pres e n te d at trial and in conjunction with Reedy's 2255 motion does not reflect t h a t this is "an extraordinary case . . . in which a constitutional violation has p r o b a b ly resulted in the conviction of one who is actually innocent." United S ta te s v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (en banc) (internal quotation m a r k s and citation omitted). Additionally, "[n]o evidentiary hearing is required" if a prisoner is unable to satisfy the cause and prejudice standard for overcoming a procedural bar. Woods v. Whitley, 933 F.2d 321, 323 (5th Cir. 1991). As a res u lt , the judgment denying habeas corpus relief is AFFIRMED. 3

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