Holmes v. United States of America
MEMORANDUM;... There has been no claim that the government knowingly presented perjured testimony at Holmes's trial and there is nothing to support such a claim. Indeed, it is the Court's firm belief that at the time of the trial the gover nment had no reason to question the credibility of its witnesses. However, the witnesses have now been discredited, and the government would not have been able to meet its burden of proof with the remaining evidence. Thus, for the reasons discussed a bove, the Court finds that Holmes has met his burden of establishing his entitlement to a new trial based on newly discovered. Because Holmes will receive a new trial, it is unnecessary to address his additional claims regarding the admissibility of evidence and ineffective assistance of counsel. A separate Order granting the movant's request for relief will accompany this Memorandum. Signed by Honorable Carol E. Jackson on 09/26/2011; (DJO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MICHAEL JAMES HOLMES,
UNITED STATES OF AMERICA,
) No. 4:08-CV-1142 (CEJ)
This matter is before the Court on the motion and amended motion of Michael
James Holmes to vacate, set aside or correct sentence, pursuant to 28 U.S.C. § 2255.
The United States has responded, and the issues have been fully briefed.
On June 28, 2006, Holmes was found guilty of possession of more than 50 grams
of a substance containing cocaine base with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1) (Count I), and possession of firearms in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c). Because of his prior felony drug conviction,
Holmes was subject to a mandatory minimum sentence of 20 years’ imprisonment for
Count I. See 21 U.S.C. § 841(b)(1)(A)(iii). He was sentenced on November 13, 2006,
to a 240-month term of imprisonment on Count I and a consecutive 60-month term of
imprisonment on Count II. The judgment was affirmed on appeal. United States v.
Holmes, 231 Fed. Appx. 535 (8th Cir. 2007).
As grounds for relief in the instant motion, Holmes asserts allegations of
ineffective assistance of counsel at trial and on appeal.
He also challenges the
constitutionality of a search conducted by the police and the admission of certain
evidence at trial. Finally, Holmes claims that he is entitled to a new trial based on newly
discovered evidence of criminal activity and official misconduct by two police officers who
testified against him.
A. Evidence Presented at Trial
In December 2003, an informant told St. Louis police officer Shell Sharp that
cocaine base was being sold from a house located at 5894 Cates Avenue by a man
identified as “Big Mike.” The informant described Big Mike as a 270-pound black male,
between 40 and 45 years old. According to the informant, Big Mike kept a firearm in
On December 9, 2003, Sharp and St. Louis police officer Alan Ray
established surveillance near the residence and saw a man who fit the description given
by the informant. At trial, Sharp identified the man as Holmes. During the surveillance,
Holmes was seen coming out of the residence carrying a brown bag from which he would
remove an item and hand it to another individual. Sharp testified that he observed
Holmes engage in three of these “hand-to-hand” exchanges which appeared to be drug
Sharp and Ray approached the house and knocked on the door. Maetta Griffin,
Holmes’ grandmother, answered and identified herself as the owner of the residence.
After the officers explained what had led them to her home, Ms. Griffin signed a consent
to search form.
Sharp and Ray entered the house and saw Holmes coming down the
stairs from the third floor. After Holmes saw the officers, he turned and dropped a
brown paper bag as he ran back up the stairs. Sharp retrieved the bag and found that
it contained 239 grams of cocaine base inside a plastic bag. In a third floor bedroom,
the police found a loaded shotgun, ammunition, an open safe containing $4,000 in U.S.
currency, six grams of heroin, and paraphernalia (glass measuring cups, a digital scale,
a roasting pan, plastic baggies, and a plastic bag of rubber bands) associated with drug
distribution. Also in the room was a letter addressed to Holmes at 5894 Cates. As the
police were leaving the house, they found a second firearm behind the front door.
Holmes was taken into custody and was given the Miranda warnings. According to the
testimony, Holmes told the officers that he lived in the bedroom on the third floor.
Sharp testified that Holmes and his grandmother were the only people found
inside the house. There were two other black men at the residence, Keith Valentine and
Michael Green. Sharp testified that both were found outside the residence. However,
in his police report, Sharp wrote that the two men were located during a sweep search
of the first floor of the house.
Officer Sharp was the sole witness to testify about the suspected drug
transactions observed during the surveillance and about Holmes’ possession of the
brown bag inside the residence. Officer Ray did not testify because he was on military
duty in Iraq at the time of trial.
A single fingerprint belonging to Holmes was found on bag of rubber bands.
Officer Sharp and an expert witness testified that rubber bands are commonly used by
drug dealers to wrap their currency. The expert witness further acknowledged that
there are a “million uses” for rubber bands. United States v. Michael James Holmes, No.
4:05-CR-522 (CEJ) (E.D.Mo.), Doc. # 84, p. 366. There was no evidence that the
$4,000 found in the safe were secured by rubber bands. Also, Holmes’s fingerprints
were not found on any other item of evidence that was seized. Fingerprint analysis was
performed on the paper and plastic bags that contained the cocaine base, the glass
measuring cups, the scale and the roasting pan. Some of the fingerprints found on
these items were unidentifiable and some belonged to Sharp. There was no fingerprint
analysis of the firearms.
Pursuant to Rule 404(b), Fed. R. Evid., the government presented testimony
concerning the execution of a search warrant at 1459 Goodfellow on January 5, 1995.
According to St. Louis police detective Bobby Garrett, Holmes was arrested at the
residence after the police found cocaine base in his possession. Garrett further testified
that Holmes made an oral statement admitting that he sold drugs. On the same day of
his arrest, Holmes made a complaint to the Internal Affairs Division of the St. Louis
Metropolitan Police Department in which he claimed that Garrett and other officers had
planted drugs in his house and that they had physically and verbally abused him. The
IAD conducted an investigation, and the charges against the officers were not sustained.
Holmes later entered an Alford plea to drug charges stemming from the January 5, 1995
At trial, Holmes testified that he once rented the third floor bedroom at the Cates
residence and that others, including Keith Valentine, also rented rooms in the house.
He testified that he moved out in February 2002; however, mail addressed to him
continued to be delivered there. On December 9, 2003, Holmes was called to the Cates
residence. He left work and arrived there around 3:00 p.m. Several of his relatives and
Keith Valentine were there. He visited with them in the third floor bedroom which was
then occupied by one of his relatives, Dwayne Hollinshed. After awhile, the group
decided to leave and all but Holmes went outside. Holmes went downstairs where he
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
stopped to talk to his grandmother.
He then returned to the third floor to use the
bathroom. Holmes testified that he was in the third floor hallway when a police officer
(not Sharp) arrested him. He testified that he did not have a bag in his possession.
Holmes denied ownership and possession of the drugs, firearms and other evidence
found in the residence.
B. Evidence Discovered after Trial
In 2009, Sharp became the target of an Internal Affairs investigation into police
There were allegations that Sharp had made false statements about
informants and surveillance activities in affidavits that were submitted to obtain search
warrants. It was also alleged that he gave perjured testimony in court. According to
media reports, concerns about Sharp’s credibility prompted the prosecuting attorney for
St. Louis City to drop cases in which Sharp had been involved.
In 1998, Sharp testified for the government at the trial of Stephen Jones, who
was prosecuted for possession of cocaine base with intent to distribute. According to the
testimony, Sharp and Detective Vincent Carr saw Jones drop a bag of cocaine base as
he was running down the hallway of a house.
Jones maintained that the officers lied
about his possession of the drugs. In February 2009, Carr pled guilty to wire fraud,
making a false statement, and obstruction of justice—charges stemming from conduct
he engaged in as a police officer.
Jones filed a motion for a new trial based on the
newly discovered evidence of Carr’s misconduct. The government conceded the motion
and joined in Jones’s motion for a certificate of actual innocence.
In doing so, the
government stated that it could not vouch for the credibility of either Carr or Sharp.
United States v. Stephen Jones, No. 4:10-CV-1748 (CEJ)(E.D. Mo.)[Doc. # 8 and # 14].
In August 2009, Detective Garrett pled guilty to felony charges of theft of
government funds, wire fraud, making a false statement, and misapplication of property
under the control of a federally-funded state agency. All of the charges arose from
Garrett’s misconduct in 2007 and 2008 while acting as police officer. Garrett admitted
that he stole money and other property that was seized during searches that he and
other officers conducted, and that he and his accomplices made false statements and
falsified documents to conceal their actions. Garrett was sentenced to a 28-month term
In 2010, Matthew Cox filed a § 2255 motion to vacate alleging that in 1997
Garrett submitted a false affidavit in applying for a search warrant. Matthew Cox v.
United States, No. 4:10-CV-1572 (CEJ) (E.D.Mo.) [Doc. # 1]. The government initially
opposed the motion, arguing that the crimes to which Garrett pled guilty were
committed 10 years after Cox’s trial and, therefore, Garrett’s conviction did not justify
a new trial based on newly discovered evidence.
Id. [Doc. # 4].
government later stipulated that Cox had made “a substantial preliminary showing, by
sworn offer of proof and otherwise, that false statements and omissions may have been
made with reckless disregard for the truth by the sole Affiant to the aforesaid search
warrant sufficient to mandate a testimonial hearing pursuant to Franks v. Delaware, 438
U.S. 154, 155-156 (1978).” Id. [Doc. # 9]. The government further stipulated that it
“would be unable to offer relevant credible evidence in defense of the affidavit in support
of the search warrant in the event of a Franks hearing.” Id.
A movant seeking a new trial on the basis of newly discovered evidence must
prove that (1) the evidence was unknown or unavailable to him at the time of trial; (2)
the failure to discover the evidence was not due to his lack of diligence;(3) the evidence
is material and is not merely cumulative or impeaching; and (4) the evidence is such
that it would probably result in an acquittal upon retrial. United States v. Winters, 600
F.3d 963, 970 (8th Cir.), cert. denied, ___ U.S. ___, 131 S.Ct. 255, 178 L.Ed.2d 169
(2010); United States v. Fuller, 557 F.3d 859, 863-864 (8th Cir. 2009). “The standard
for a new trial on the basis of newly discovered evidence ‘is rigorous because these
motions are disfavored.’” United States v. Hollow Horn, 523 F.3d 882, 889 (8th Cir.
2008), quoting, United States v. Baker, 479 F.3d 574, 577 (8th Cir. 2007).
In this case, there is no disagreement between the parties as to whether the
evidence was unavailable to the Holmes or whether it could have been discovered
through the exercise of due diligence.
What is in dispute is whether Holmes has
satisfied the remaining criteria for obtaining a new trial based on newly discovered
Evidence that is merely impeaching does not meet the materiality requirement
for a new trial based on newly discovered evidence. See United States v. Coplen, 565
F.3d 1094, 1096 (8th Cir. 2009) (new trial is not warranted when the additional
evidence would be merely impeaching). Here, the government argues that the newly
discovered evidence could only serve to impeach the police officers’ testimony. The
government also argues that evidence of official misconduct by Sharp and Garrett is not
likely to result in an acquittal if a new trial is granted. In support of this argument, the
government cites to English v. United States, 998 F.2d 609, 612 (8th Cir.), cert. denied,
510 U.S. 1001 (1993), for the proposition that the Court must consider “the other
witnesses who testified at the trial, including Petitioner, and all of the other evidence
that the Government introduced at the trial.” Govt’s Supplemental Response, p. 9 (Doc.
There was no witness other than Sharp who testified about the information
provided by the informant. There was no witness other than Sharp who testified to
seeing Holmes engage in hand-to-hand drug transactions outside the Cates residence.
There was no witness other than Sharp who testified to seeing Holmes drop the bag of
cocaine base and to the incriminating statements Holmes made upon arrest. Likewise,
there was no witness other than Garrett who testified to Holmes 1995 admission of drug
trafficking. The fact that the government now has two witnesses---Officer Ray and
Officer John Weiter--- who could corroborate Sharp’s and Garrett’s testimony is
immaterial. The jury never heard Officer Ray or Officer Weiter, and Holmes did not have
the opportunity to cross-examine them. In this important respect, this case differs from
those in which newly discovered evidence of a witness’s misconduct was deemed not
material because of the existence of other, corroborating evidence presented at trial.
For example, in United States v. Antonio Harris, No. 4:07-CR-321 (CEJ) (E.D.Mo),
this Court denied the defendant’s motion for a new trial that was based on the newly
discovered evidence of criminal conduct by a police officer who had testified against him
The defendant had been found guilty of possession with intent to distribute
The Court found that the defendant could not establish materiality
because the officer’s conviction arose from crimes he committed months after the
defendant’s trial, the convicted officer was not the person who found the cocaine base,
and there was no challenge to the credibility of the officer who testified about finding the
cocaine base. Id. [Doc. # 136].
In Thompson v. United States, 2011 WL 553794 (N.D. Ga. Feb. 3, 2011), the
movant sought a new trial based on the criminal convictions of two police officers who
had been involved in a search of his apartment.
In denying the motion, the court
pointed to the “substantial evidence” of the movant’s role in drug trafficking that existed
apart from the officers’ misconduct:
When the six officers entered the Oglethorpe Avenue apartment, they
found four people inside, as well as over 100 grams of cocaine, 50 grams
of crack cocaine, 318 doses of ecstasy, two guns, baggies, and scales. The
drugs were found in a safe, in both bedrooms, in a closet, and in the
kitchen. Believing that six officers planted all of that evidence and
photographed it in the presence of four suspects requires a big stretch of
And in addition to the drugs, guns, and paraphernalia, the officers found
“[d]ocuments that were undisputedly Thompson's,” including three traffic
citations that Thompson had received less than two miles from the
Oglethorpe Avenue address and while driving a car owned by another
occupant (who unquestionably was involved in the drug operation). . . .
The police also found a Red Cross application filled out by Thompson and
dated just one day before the search. . . . Finally, there was a list of phone
numbers and nicknames-a drug dealer's address book-that matched
Thompson's cell phone records. . . . All of these documents were found in
one of the bedrooms, along with more than 100 grams of powder cocaine
and 10 grams of crack. In addition to the amount of drugs, the paperwork
that undoubtedly belonged to Thompson connected him to the Oglethorpe
Avenue address and dispels any reasonable inference that the evidence
against him was somehow faked.
Id. at *8 (citations omitted).
The court also considered that movant gave inconsistent testimony at trial, and the
evidence of his six prior felony convictions, his lies to the police about his identity, and
his false testimony at an earlier hearing. Id. at *9. The court further noted that the
movant “does not even argue that the evidence against him was fabricated; instead, he
argues essentially that he could impeach the officers in a new trial in light of their later
misconduct. But to the extent that is his goal, under Jernigan impeachment evidence
alone is not enough to merit a new trial.” Id. [citing United States v. Jernigan, 341 F.3d
1273, 1287 (11th Cir. 2003)].
In contrast to Thompson, the evidence apart from Sharp’s and Garrett’s
testimony (i.e., the letter and the fingerprint) can hardly be considered “substantial”
evidence of Holmes’s involvement in illegal activity. Indeed, such evidence would have
been insufficient to establish guilty beyond a reasonable doubt. Also, Holmes did not
give conflicting or inconsistent testimony at trial, and there was no evidence that he had
made false statements to the police or in any court proceeding. Further, Holmes has
consistently maintained that he is innocent and that Sharp and Garrett lied in their
The Thompson court also considered the fact that the police officers’
convictions were based on conduct that occurred after movant’s trial. That is not the
case here. As discussed above, the government has acknowledged that it cannot vouch
for the credibility of testimony given by Sharp and Garrett 1997 and in 1998----some
nine years before Holmes’s trial.
There has been no claim that the government knowingly presented perjured
testimony at Holmes’s trial and there is nothing to support such a claim. Indeed, it is
the Court’s firm belief that at the time of the trial the government had no reason to
question the credibility of its witnesses.
However, the witnesses have now been
discredited, and the government would not have been able to meet its burden of proof
with the remaining evidence.
Thus, for the reasons discussed above, the Court finds
that Holmes has met his burden of establishing his entitlement to a new trial based on
newly discovered. Because Holmes will receive a new trial, it is unnecessary to address
his additional claims regarding the admissibility of evidence and ineffective assistance
A separate Order granting the movant’s request for relief will accompany this
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 26th day of September, 2011.
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