          Case: 14-15118    Date Filed: 09/30/2015   Page: 1 of 9


                                                         [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-15118
                       Non-Argument Calendar
                     ________________________

                D.C. Docket Nos. 1:11-cv-04015-WBH,

                    1:08-cr-00041-JEC-JFK-2



BOYD SMITH,

                                                          Petitioner-Appellant,

                               versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Georgia
                    ________________________

                           (September 30, 2015)
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Before TJOFLAT, WILSON and JORDAN, Circuit Judges.

PER CURIAM:

        Boyd Smith, a federal prisoner proceeding with the assistance of counsel,

appeals the District Court’s denial of his 28 U.S.C. § 2255 motion to vacate, and

the court’s denial of his motion for a new trial based upon newly discovered

evidence. See Fed. R. Crim. P. 33.

        We granted a certificate of appealability (“COA”) as to the following issue

only:

        Whether the District Court erred in denying, without an evidentiary
        hearing or ordering discovery, Smith’s claim of prosecutorial
        misconduct in failing to inform Smith that Sandeo Dyson was
        involved in an information-for-sale scheme during the time that he
        testified in Smith’s trial?

        Smith raises two arguments on appeal. First, he contends that the District

Court erred by denying his § 2255 motion without an evidentiary hearing or

discovery, as the government violated his due process rights under Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and Giglio v.

United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972 ), by failing to

disclose that an essential witness, his codefendant Sandeo Dyson, was involved in

an ongoing information-for-sale scheme at the time of his trial. Second, he argues

that the District Court abused its discretion when it denied his motion for new trial



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based on newly discovered evidence. For ease of reference, we address each point

in turn.

                                  I. Smith’s § 2255 Motion

       In a § 2255 proceeding, we review a district court’s legal conclusions de

novo and its factual findings for clear error. Devine v. United States, 520 F.3d

1286, 1287 (11th Cir. 2008). We review a district court’s denial of an evidentiary

hearing in a § 2255 proceeding for abuse of discretion. Winthrop-Redin v. United

States, 767 F.3d 1210, 1215 (11th Cir. 2014). Likewise, we review a district

court’s denial of § 2255 movant’s request for discovery for an abuse of discretion.

Bowers v. U.S. Parole Comm’n, Warden, 760 F.3d 1177, 1183 (11th Cir. 2014). A

district court abuses its discretion if it applies an incorrect legal standard, applies

the law in an unreasonable or incorrect manner, follows improper procedures in

making a determination, or makes findings of fact that are clearly erroneous.

Winthrop-Redin, 767 F.3d at 1215. In the context of an unsuccessful § 2255

motion, the scope of our review is limited to the issues specified in the COA.

McKay v. United States, 657 F.3d 1990, 1995 (11th Cir. 2011).

       An evidentiary hearing must be held on a motion to vacate “[u]nless the

motion and the files and records of the case conclusively show that the prisoner is

entitled to no relief.” 28 U.S.C. § 2255(b). The petitioner is entitled to an

evidentiary hearing if the § 2255 motion alleges specific facts that, if true, would
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warrant relief. Aron v. United States, 291 F.3d 708, 714-15 (11th Cir. 2002).

However, a district court is not required to hold an evidentiary hearing if the

petitioner’s allegations are based upon unsupported generalizations or are

affirmatively contradicted by the record. Winthrop-Redin, 767 F.3d at 1216.

      A habeas petitioner is not entitled to discovery as a matter of course.

Bowers, 760 F.3d at 1183. However, the district court retains discretion to grant

discovery upon a showing of good cause. Id. A petitioner may demonstrate good

cause by making specific allegations that “show reason to believe that the

petitioner may, if the facts are fully developed, be able to demonstrate that he is

entitled to relief.” Id. Good cause for discovery cannot arise from mere

speculation, however. Arthur v. Allen, 459 F.3d 1310 (11th Cir. 2006).

      In Brady, the Supreme Court held that “the suppression by the prosecution

of evidence favorable to an accused . . . violates due process where the evidence is

material either to guilt or to punishment.” Brady, 373 U.S. at 87, 83 S. Ct. at

1196–97. Thus, to prevail on a Brady claim, a petitioner must demonstrate that:

(1) the government possessed evidence that is favorable to him, either because it is

exculpatory, or because it is impeaching; (2) the government suppressed that

evidence, either willfully or inadvertently; and (3) prejudice ensued. Allen v.

Sec’y, Fla. Dep’t of Corr., 611 F.3d 740, 745-46 (11th Cir. 2010). Prejudice

exists—and evidence is material as to guilt or punishment—if there is a reasonable
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probability that, had the evidence been disclosed, the result of the proceeding

would have been different. Id. at 746 (quoting United States v. Bagley, 473 U.S.

667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985)).

      In Giglio, the Supreme Court addressed a particular subset of Brady claims,

and held that, when the prosecution solicits or fails to correct known false

evidence, due process requires a new trial where the false testimony could in any

reasonable likelihood have affected the judgment. Giglio, 405 U.S. at 153, 92 S.

Ct. at 766; see also Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1107 (11th

Cir. 2012) (summarizing the requirements of Giglio). Thus, to prevail on a Giglio

claim, a petitioner must establish that: (1) the government knowingly used perjured

testimony or failed to correct what it subsequently learned was false testimony; and

(2) such use was material. Guzman v. Sec’y, Dep’t of Corr., 663 F.3d 1336, 1348

(11th Cir. 2011). A falsehood is material under Giglio if there was a reasonable

likelihood that the false testimony could have affected the judgment. Id. Because

the Giglio materiality standard requires a petitioner to show only that the

government’s non-disclosure “could have affected” the jury’s judgment, it is less

stringent than the standard for materiality under Brady, which requires a petitioner

to demonstrate “a reasonable probability” that the outcome of the proceeding

would have been different. Trepal, 684 F.3d at 1108.


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      The District Court did not err by denying Smith’s § 2255 motion without an

evidentiary hearing for two reasons. First, all of Smith’s factual allegations, taken

as true, do not demonstrate that the government knew or should have known that

Dyson was involved in an information-for-sale scheme at the time of Smith’s trial.

See Aron, 291 F.3d at 714-15. The government did not charge Dyson for his

participation in the scheme until 2010, and the indictment alleged that he

committed the first overt act in furtherance of the scheme in May 2009, after

Smith’s trial. Although the government knew of the Watkins-Lumsden scheme in

2008, there was no indication that the government was aware of Dyson’s

participation in this scheme prior to February 2009. Although Smith now asserts

that Dyson’s tenuous references to Bird and Shorty Mark demonstrate that the

government knew of Dyson’s participation in the information-for-sale scheme, he

does not allege facts supporting this conclusion, and the District Court was not

required to hold an evidentiary hearing based upon his own speculative

generalizations. See Winthrop-Redin, 767 F.3d at 1216.

      Second, the District Court did not err by denying Smith’s § 2255 motion

without an evidentiary hearing because the allegedly undisclosed information

would not have impacted the jury’s verdict. In his § 2255 motion, Smith alleged

that the jury could have reached a different verdict, had it known about Dyson’s

involvement in the information-for-sale scheme. However, this information,
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unrelated to the events surrounding the Club Onyx fire, only implicates Dyson’s

credibility as a witness; it does not exonerate Smith from participation in the arson.

Even assuming the jury completely discounted Dyson’s testimony, there was other

evidence in the record demonstrating Smith’s involvement in the Club Onyx fire.

For instance, Smith’s second codefendant, Thrower, testified unequivocally that

Smith participated in planning to burn down Club Onyx. Likewise, several other

witnesses testified for the government, describing incriminating statements made

by Smith which demonstrated his knowledge and involvement in the arson.

Finally, although Smith himself denied all knowledge of the plan to burn down

Club Onyx, the jury plainly disbelieved his testimony. Accordingly, because

Dyson’s involvement in the information-for-sale scheme would not have impacted

the jury’s verdict, it was not material under either Brady or Giglio, and the court

did not err by denying Smith’s § 2255 motion without an evidentiary hearing.

      Finally, based on the aforementioned reasons, the District Court also did not

err by denying discovery, as Smith relied on his own speculative conclusion that

the District Court knew of Dyson’s involvement in the information-for-sale

scheme, without making the requisite specific allegations necessary to demonstrate

good cause. See Bowers, 760 F.3d at 1183. Thus, we affirm in this respect.

                       II. Smith’s Fed. R. Crim. P. 33 Motion


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       We review a district court’s denial of a motion for a new trial based on

newly discovered evidence, or based on a Brady violation, for abuse of discretion.

United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002).1

       Under Rule 33, a court may vacate any judgment and grant a new trial “if

the interest of justice so requires.” Fed. R. Crim. P. 33(a). However, a motion for

a new trial grounded upon newly discovered evidence must be filed within three

years of the verdict. Fed. R. Crim. P. 33(b)(1). Furthermore, to succeed on such a

motion, a defendant must establish that: (1) the evidence was discovered after trial;

(2) the failure to discover the evidence was not due to a lack of due diligence;

(3) the evidence is not merely cumulative or impeaching; (4) the evidence is

material; and (5) a new trial would probably produce a different result. United

States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003). Motions for a new trial

are highly disfavored, and we have advised that district courts should use great

caution in granting such a motion based on newly discovered evidence. Id.

       The district court did not abuse its discretion by denying Smith’s motion for

a new trial. In this case, the jury convicted Smith on February 25, 2009, and Smith


       1
          We note that while Smith’s Rule 33 motion is not mentioned in the COA, a COA is not
required to appeal from the denial of a Fed. R. Crim. P. 33 motion for a new trial. See 28 U.S.C.
§ 2253(c). Moreover, the notice of appeal, filed in both the underlying criminal prosecution as
well as the civil habeas proceedings, designated the District Court’s order denying both the
§ 2255 motion and the Rule 33 motion as the subject of this appeal.

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filed his motion for a new trial based upon newly discovered evidence on October

19, 2012, more than three years after the verdict. Accordingly, the District Court

did not err by dismissing Smith’s motion as time barred under Rule 33(b)(1). Fed.

R. Crim. P. 33(b)(1).

      Moreover, even assuming Smith’s motion for appropriate relief relating to

his § 2255 motion can be construed as a motion for a new trial under

Fed. R. Crim. P. 33, his motion does not succeed. Here, the newly discovered

evidence related to Dyson’s involvement in an unrelated information-for-sale

scheme. Throughout habeas proceedings, Smith argued that the result of his trial

would have been different had he been allowed to impeach Dyson regarding his

involvement in this scheme. Thus, Smith failed to establish that the evidence

discovered after trial was not impeachment evidence, and the District Court did not

err by denying his motion. See Jernigan, 341 F.3d at 1287.

      AFFIRMED.




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