                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3771
                                   ___________

Euka Wadlington,                        *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
United States of America,               *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: September 12, 2005
                                Filed: November 14, 2005
                                 ___________

Before RILEY, LAY, and FAGG, Circuit Judges.
                             ___________

RILEY, Circuit Judge.

      Euka Wadlington (Wadlington) was sentenced to life imprisonment for
conspiracy to distribute and possess with intent to distribute cocaine and crack
cocaine, and for attempted distribution of crack cocaine. On appeal, this court
affirmed the conviction and sentence. United States v. Wadlington, 233 F.3d 1067,
1072 (8th Cir. 2000). Wadlington then filed a motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255. The district court1 denied the motion.
Wadlington appeals, arguing (1) he is actually innocent, and (2) his sentence is

      1
       The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
invalid under Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirm the section
2255 motion denial.

I.     BACKGROUND
       A.      Wadlington’s Trial and Direct Appeal
       Because the facts of this case are set forth in an earlier opinion addressing
Wadlington’s direct appeal, see Wadlington, 233 F.3d at 1072-73, we only summarize
them here. Wadlington was indicted for conspiracy to distribute and possess with
intent to distribute cocaine and crack cocaine, and for attempted distribution of crack
cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). At trial, the government
argued that from 1990 to 1998 Wadlington was the leader of a drug organization
supplying cocaine and crack cocaine to individuals in Clinton, Iowa. Over ten
government witnesses related similar accounts of buying or receiving drugs from
Wadlington, selling those drugs and giving Wadlington the proceeds, observing
Wadlington sell drugs to others, transporting drugs in laundry detergent boxes from
Chicago to Clinton for Wadlington, and watching Wadlington cook crack cocaine and
distribute it to others for sale.

        The jury also heard evidence concerning Wadlington’s attempted distribution
of crack cocaine in late 1998. Mark Thomas (Thomas), a government informant,
testified he made several recorded telephone calls to Wadlington and introduced him
to an undercover agent posing as a drug dealer. During conversations with the agent,
Wadlington admitted he had been dealing drugs with Thomas for ten years. Thomas
arranged for Wadlington to sell one kilogram of cocaine to the agent. On November
13, 1998, Wadlington arrived as planned at a hotel to meet the agent for delivery of
the drugs, and he was arrested. No drugs were found during a search of Wadlington’s
person or vehicle. Following Wadlington’s arrest, he remarked some of his
acquaintances “must be talking,” and asked, “Is Mark Thomas in custody, or is he
working with you also?”



                                         -2-
      The jury found Wadlington guilty of both the conspiracy to distribute and
attempted distribution charges. Wadlington was sentenced to life imprisonment and
10 years’ supervised release for each count, to be served concurrently. Following an
unsuccessful direct appeal, Wadlington petitioned this court for rehearing, arguing
for the first time his sentence was invalid under Apprendi, because a specific
threshold drug quantity was neither alleged in the indictment nor proven to the jury
beyond a reasonable doubt. We denied the petition for rehearing.

       B.    Wadlington’s Section 2255 Motion
       Wadlington then filed his motion pursuant to 28 U.S.C. § 2255, asserting six
grounds for relief, claiming, inter alia, (1) he is actually innocent of the crimes
charged, and (2) his sentence was imposed in violation of Apprendi. Wadlington
later supplemented his motion with affidavits from four individuals: Terrance Hood
(Hood), Romaine Dukes (Dukes), Charles McMasters (McMasters), and Jesse Puckett
(Puckett). Wadlington argued the affidavits constituted newly discovered evidence
supporting his claim of actual innocence. The affidavits of Hood, Dukes, and
McMasters attempt to discredit the trial testimony of Hood and Tyrone Redmond
(Redmond), whereas Puckett’s affidavit speaks to Wadlington’s lack of involvement
with drugs after Wadlington’s release from jail in the early 1990s.

       At trial, Hood testified about Wadlington’s leadership role in the Clinton
conspiracy. Hood identified other conspiracy members and testified he observed
Wadlington cook crack cocaine at the homes of female acquaintances in Clinton and
remove cocaine from a detergent box. Hood also testified (1) Wadlington supplied
him and others with drugs for resale, and (2) Hood began selling drugs for
Wadlington at the age of fourteen. Hood also testified being physically abused and
electrically shocked by Wadlington for making mistakes with the drug money. In
contrast to his trial testimony, Hood’s affidavit states Wadlington never supplied him
with drugs or physically abused him. Hood also claims his false accusations at trial



                                         -3-
were coerced by government agents who told him he could avoid a life sentence only
by implicating Wadlington.

       The affidavits of Dukes and McMasters both attack Redmond’s trial testimony.
At trial, Redmond testified he first began selling cocaine through Wadlington, and
repeatedly transported drugs from Chicago to Clinton for Wadlington, in exchange
for money. Dukes’s affidavit alleges that between August 1999 and April 2001,
while Dukes and Redmond were incarcerated in federal prison, Dukes confronted
Redmond for testifying against Wadlington and said Redmond knew Wadlington was
not involved in the Clinton drug conspiracy. According to Dukes’s affidavit,
Redmond denied testifying against Wadlington. Similarly, McMasters’s affidavit
alleges that in early 1999 Redmond stated the government wanted information about
Wadlington, and Redmond and McMasters could get a reduction in their sentences
if they made something up about Wadlington.

        The district court denied Wadlington’s motion. In rejecting Hood’s affidavit,
the court noted recantations are “viewed with suspicion” and found no evidence the
government knew or should have known Hood’s trial testimony was false. The court
further held Puckett’s affidavit did not constitute new information, reasoning
Wadlington failed to explain why Puckett’s testimony could not have been presented
at trial. Finally, the court concluded the affidavits of Puckett, Dukes, and McMasters
did “little to diminish other evidence at trial linking Wadlington to the drug
conspiracy.” Thus, the court held Wadlington failed to demonstrate his actual
innocence. With regard to Wadlington’s Apprendi claim, the court ruled
Wadlington’s sentence was not unconstitutional because the rule announced in
Blakely v. Washington, 542 U.S. 296 (2004), which applied Apprendi, was not a
watershed rule of criminal procedure and thus did not apply to cases on collateral
review.




                                         -4-
       Following its denial of Wadlington’s petition, the district court granted
Wadlington’s request for a certificate of appealability on (1) whether Wadlington is
actually innocent, and (2) whether Blakely applies to cases brought under 28 U.S.C.
§ 2255.

II.    DISCUSSION
       A.     Actual Innocence Claim
       We review de novo the district court’s denial of Wadlington’s section 2255
motion and will affirm if the motion, files, and record conclusively show Wadlington
is not entitled to relief. See Von Kahl v. United States, 242 F.3d 783, 787 (8th Cir.
2001). An actual innocence claim is “not itself a constitutional claim, but instead a
gateway through which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.” Schlup v. Delo, 513 U.S. 298, 315
(1995) (quotation omitted). To establish a valid claim of actual innocence,
Wadlington must “support his allegations of constitutional error with new reliable
evidence . . . that was not presented at trial,” and demonstrate “it is more likely than
not that no reasonable juror would have convicted him in the light of the new
evidence.” Id. at 324, 327. This standard is strict; a party generally cannot
demonstrate actual innocence where there is sufficient evidence to support a
conviction. See Johnson v. United States, 278 F.3d 839, 844 (8th Cir. 2002) (quoting
McNeal v. United States, 249 F.3d 747, 749-50 (8th Cir. 2001)).

       Wadlington urges this court to apply a modified test, set forth in English v.
United States, 998 F.2d 609, 611 (8th Cir. 1993), given “the newly discovered
evidence involves a claim of perjury by prosecution witnesses.” Under this test,
Wadlington must “prove any reasonable likelihood that the false testimony could
have affected the judgment of the jury.” Id. (citations omitted). Before we may
employ this relaxed standard, however, Wadlington must show (1) the testimony was
in fact perjured, and (2) the prosecutor knew or should have known of the perjury at
the time the testimony was presented. Id. (citation omitted). Because we conclude

                                          -5-
Wadlington fails to establish his right to relief under either standard, we affirm the
district court.

       Applying the strict standard, we conclude Wadlington has failed to demonstrate
his actual innocence. First, the four witness affidavits do not entitle Wadlington to
appellate review of his otherwise barred claims. With regard to Hood’s affidavit, we
agree with the district court that recantations of testimony generally are viewed with
suspicion. See United States v. Provost, 969 F.2d 617, 619 (8th Cir. 1992).2
Furthermore, Hood’s affidavit does not establish Wadlington’s actual innocence. The
affidavit does not recant Hood’s entire trial testimony; rather, it leaves intact Hood’s
testimony on Wadlington’s possession of drugs, and the identity and involvement of
other conspiracy members. Additionally, although relevant and material, Hood’s
testimony was not central to Wadlington’s conviction. See Cox v. Burger, 398 F.3d
1025, 1031 (8th Cir. 2005). Multiple witnesses testified at trial and corroborated
Hood’s testimony regarding Wadlington’s criminal activities. Wadlington’s own
statements to law enforcement further corroborated Hood’s testimony and supported
the convictions.

      For similar reasons, we conclude Wadlington’s remaining affidavits, two of
which attack the trial testimony of Redmond, do not constitute “new reliable
evidence” making it “more likely than not that no reasonable juror would have
convicted [Wadlington].” Schlup, 513 U.S. at 324, 327. With regard to Dukes’s
affidavit, we agree with the district court there may be a number of reasons why
Redmond allegedly denied testifying against Wadlington, none of which would bear

      2
       While the district court based its rejection of Hood’s affidavit in part on its
recollection of Hood’s testimony five years earlier, the court’s failure to hold an
evidentiary hearing to evaluate Hood’s new testimony was not an abuse of discretion.
See Etheridge v. United States, 241 F.3d 619, 622 (8th Cir. 2001) (standard of
review). An evidentiary hearing is not necessary where, as in this case, the district
judge observed the demeanor and credibility of the witness at trial or is otherwise
thoroughly familiar with the record of the case. See Provost, 969 F.2d at 619.
                                         -6-
on Wadlington’s actual innocence. Finally, McMasters’s affidavit regarding
Redmond’s testimony is, at best, impeachment evidence and does not exonerate
Wadlington. Together, the affidavits simply do not extinguish the abundance of other
evidence linking Wadlington to the Clinton drug conspiracy.

       Wadlington fares no better under the modified test. Even if Wadlington could
demonstrate Hood’s and Redmond’s trial testimony were perjured–a claim rejected
by the district court and a conclusion we also are hesitant to reach–Wadlington does
not demonstrate the government knew or should have known of the alleged perjury
at the time the testimony was presented. Because Wadlington fails to establish his
actual innocence, we affirm the district court on this issue.

        B.    Apprendi and Blakely Claim
        Wadlington next argues his life sentence violates both Apprendi and Blakely
because the district court’s findings of drug quantity were not charged in the
indictment or submitted to the jury and proven beyond a reasonable doubt, and the
district court erred by increasing Wadlington’s sentence to life imprisonment based
upon its findings. While Wadlington’s direct appeal was pending, the Supreme Court
announced its decision in Apprendi.3 Wadlington first raised his Apprendi claim in
a petition for rehearing to this court and again on a petition for writ of certiorari to the
Supreme Court, both of which were denied. Wadlington reasserted his Apprendi
claim on collateral review in his section 2255 motion. The district court refused to
consider Wadlington’s argument, stating Apprendi was not applicable to cases on
collateral review. Wadlington now argues the district court erred because Apprendi
was decided before his case was “final” and the court thus was required to apply
Apprendi’s holding retroactively to his case. See Griffith v. Kentucky, 479 U.S. 314,


       3
      Wadlington’s direct appeal was submitted to this court on May 9, 2000, and
Wadlington’s conviction and sentence were affirmed on December 1, 2000.
Wadlington, 233 F.3d at 1072. In the interim, the Supreme Court announced its
Apprendi decision on June 26, 2000.
                                      -7-
328 (1987) (holding a new rule for conducting criminal prosecutions must be applied
retroactively to all cases “pending on direct review or not yet final”); United States
v. Ross, 279 F.3d 600, 608 (8th Cir. 2002) (same).

       While the chronology of Wadlington’s direct appeal and Apprendi complicates
this claim of error to some degree, we conclude the district court should have
considered Wadlington’s Apprendi claim, given Wadlington’s case was “not yet
final” when Apprendi was announced. Apprendi was decided nearly six months
before this court announced its decision in Wadlington’s direct appeal, and the
Apprendi rule should have been applied retroactively to Wadlington’s case. Supra
n.3. See, e.g., United States v. Cotton, 535 U.S. 625 (2002). We thus proceed to
review Wadlington’s claimed error. Wadlington concedes this issue was not
preserved during sentencing, and we agree.4 Therefore, we review for plain error.
See Diaz, 296 F.3d at 683.

       Before we may correct an error not raised below, “there must be (1) error,
(2) that is plain, and (3) that affects substantial rights. If all three conditions are met,
[we] may then exercise [our] discretion to notice a forfeited error, but only if (4) the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Johnson v. United States, 520 U.S. 461, 466-67 (1997); see also
Pirani, 406 F.3d at 550. Here, the district court committed error by imposing a
sentence greater than the maximum of twenty years authorized by the facts found by
the jury, and “the error is plain, that is, clear or obvious, at this time.” Id.; see, e.g.,
Johnson, 520 U.S. at 468 (“[W]here the law at the time of trial was settled and clearly
contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the


       4
        During sentencing, Wadlington only challenged the reliability of the
government’s evidence relating to drug quantities attributable to him. Such “a
sufficiency-of-proof objection [does] not preserve a claim of Apprendi error.” United
States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc) (citing United States v.
Diaz, 296 F.3d 680, 683 n.4 (8th Cir. 2002)).
                                         -8-
time of appellate consideration.”). Having satisfied the first two elements, we
proceed to apply the remainder of this standard of review.

        In Cotton, the Supreme Court analyzed whether the indictment’s failure to
include any allegation regarding drug quantities was plain error in violation of
Apprendi. Cotton, 535 U.S. at 631-32. Skipping to the final prong of the plain-error
test, the Court held “even assuming [the defendants’] substantial rights were affected,
the error did not seriously affect the fairness, integrity, or public reputation of judicial
proceedings,” given the existence of “overwhelming” evidence regarding the
conspiracy’s involvement with the calculated drug quantity. Id. at 632-33.

       We reach a similar conclusion in this case. Here, the evidence presented at trial
overwhelmingly supported the district court’s adoption of the presentence
investigation report’s conclusion that Wadlington was responsible for transacting
more than eighteen kilograms of cocaine with regard to the conspiracy charge.
Furthermore, Wadlington received a life sentence for the attempted distribution
conviction, to be served concurrently with his life sentence for the conspiracy charge.
Thus, even if we were to accept Wadlington’s Apprendi argument with respect to the
conspiracy conviction, his life sentence on the attempted distribution conviction
would remain unchanged. See United States v. Blade, 336 F.3d 754, 757 (8th Cir.
2003) (holding indictment’s failure to allege minimum drug amounts did not affect
the fairness, integrity, or public reputation of the judicial proceedings given the
overwhelming evidence of drug quantity and existence of additional life sentences).
Because the district court’s error does not seriously affect the fairness, integrity, or
public reputation of the judicial proceedings, Wadlington is not entitled to
resentencing.

III. CONCLUSION
     Accordingly, we affirm the district court’s denial of Wadlington’s section 2255
motion.
                    ______________________________


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