     Case: 14-11202      Document: 00514219503         Page: 1    Date Filed: 11/01/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 14-11202                              FILED
                                                                         November 1, 2017

UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk

              Plaintiff - Appellee

v.

HERBERT PHILIP ANDERSON, also known as Andy,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:14-CV-192


Before DAVIS, GRAVES, and COSTA, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:*
       Herbert Philip Anderson was convicted of money laundering and
participating in a drug-trafficking conspiracy. After his direct appeal,
Anderson timely filed a motion under 28 U.S.C. § 2255. We granted a COA on
two issues: (1) whether appellate counsel rendered ineffective assistance of
counsel; and (2) whether the Government knowingly used material, perjured
testimony to secure Anderson’s conviction. On the former, we AFFIRM the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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district court’s ruling denying relief. On the latter, we REMAND to the district
court for an evidentiary hearing. We also GRANT Anderson’s motion to
supplement the record on appeal.
                                       BACKGROUND
       A jury convicted Anderson of money laundering and participating in a
drug-trafficking conspiracy on July 14, 2010. This court affirmed on direct
appeal. United States v. Holt, 493 F. App’x 515, 517 (5th Cir. 2012). 1
       After the Supreme Court denied certiorari, Anderson filed a motion
under 28 U.S.C. § 2255. The district court denied his motion in all respects, but
we granted a COA on the following two issues:
   1. “[W]hether appellate counsel rendered ineffective assistance by making
       ‘no offer of proof as to what arguments Anderson was foreclosed from
       making in his abbreviated closing argument,’ and for failing to ‘state on
       appeal how his argument would have been different if allowed additional
       time.’” 2
   2. “[W]hether the Government knowingly used material, perjured
       testimony.”
       With respect to the first COA issue, it is pertinent that the district court
divided twelve minutes of closing argument time equally among Anderson and
his two co-defendants. Anderson’s trial counsel asked for and received a fifth
minute after telling the court that his argument would be “a little bit more
involved.” Trial counsel made no further requests for additional time or
objections.




       1Our opinion on direct appeal recounts the facts of the conspiracy in greater detail.
See Holt, 493 F. App’x at 517.
       2   Internal quotations reference the opinion on direct appeal, Holt, 493 F. App’x at 522.

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       With respect to the second COA issue, Anderson has collected several
statements that, if credited, would call into doubt trial testimony offered by
Government witnesses.
                               JURISDICTION
       This court has appellate jurisdiction over the two issues on which we
granted a COA. See 28 U.S.C. § 2253. The Supreme Court denied certiorari
regarding Anderson’s direct appeal on March 18, 2013. See Anderson v. United
States, 133 S.Ct. 1619 (2013). Anderson filed his motion under 28 U.S.C. § 2255
on March 17, 2014. Anderson’s motion was therefore timely. See 28 U.S.C. §
2255(f)(1). The district court denied Anderson’s motion on October 6, 2014, and
Anderson timely filed a notice of appeal on November 3, 2014.
                          STANDARD OF REVIEW
       “When reviewing a denial of a § 2255 motion, we review factual findings
for clear error and conclusions of law de novo.” United States v. Williamson,
183 F.3d 458, 461 (5th Cir. 1999). In this context, “[w]e review an ineffective
assistance of counsel claim de novo.” Id. at 462.
       The Government “denies a criminal defendant due process when it
knowingly uses perjured testimony at trial or allows untrue testimony to go
uncorrected.” Creel v. Johnson, 162 F.3d 385, 391 (5th Cir. 1998). “The
defendant must show that (1) the testimony was false, (2) the state knew it
was false, and (3) the testimony was material.” Id. “This test presents a mixed
question of law and fact, and thus we review the underlying facts for clear error
and the conclusions from the facts de novo.” Id.
                                DISCUSSION
 I.    Anderson’s ineffective assistance claim
       Anderson’s claim for ineffective assistance of appellate counsel fails to
establish that any deficiency in his counsel’s performance caused him
prejudice. Even perfect performance by appellate counsel would not likely have

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rendered the error Anderson perceives “clear or obvious” in the eyes of the
direct appeal panel.
      “We judge counsel’s appellate performance under the same two-prong
test of Strickland v. Washington, 466 U.S. 668 (1984), applicable to trial
performance.” Williamson, 183 F.3d at 462. “To prevail, [Anderson] must
establish, first, that his attorney’s representation was deficient and, second,
that the deficient performance caused him prejudice.” Id.
         A. Deficient performance
      “To prove deficient performance, [Anderson] must show that counsel’s
failure to raise [an] argument ‘fell below an objective standard of
reasonableness.’” Id. (quoting Jones v. Jones, 163 F.3d 285, 301 (5th Cir. 1998)
(quoting Strickland, 466 U.S. at 688)). “Our review is deferential,” Williamson,
183 F.3d at 462, and Anderson “must overcome [a] ‘strong presumption that
counsel’s conduct [fell] within the wide range of reasonable professional
assistance.’” Jones, 163 F.3d at 301 (quoting Williams v. Cain, 125 F.3d 269,
276 (5th Cir. 1997)). Counsel does, however, have “an obligation to research
relevant facts and law, or make an informed decision that certain avenues will
not prove fruitful.” Williamson, 183 F.3d at 462. “Solid, meritorious arguments
based on directly controlling precedent should be discovered and brought to the
court’s attention.” Id. at 463.
      During the direct appeal, Anderson’s appellate counsel did argue the
district court erred through its severe restriction of the time permitted for
closing argument. Counsel framed his argument under the abuse of discretion
standard of review. The direct appeal panel, however, reviewed only for plain
error due to trial counsel’s failure to object or request additional time at the
end of his closing argument, see Holt, 493 F. App’x at 522.




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      Anderson submits that appellate counsel performed deficiently by failing
to frame his argument in terms of plain error review.         The district court
concluded that appellate counsel’s decision to argue under the abuse of
discretion framework “cannot be said to stem from professional judgment.” As
discussed below, we conclude that Anderson’s claim fails on the second prong
of the Strickland analysis. Therefore, with respect to Strickland’s first prong,
we assume without deciding that Anderson’s counsel on direct appeal rendered
a deficient performance.
         B. Prejudice
      “To prove prejudice from [counsel’s] deficient performance, [Anderson]
must demonstrate that ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’”
Williamson, 183 F.3d at 463 (quoting Jones, 163 F.3d at 302 (quoting
Strickland, 466 U.S. at 694)) (alteration in Williamson omitted). “A reasonable
probability is that which renders the proceeding unfair or unreliable, i.e.,
undermines confidence in its outcome.” Williamson, 183 F.3d at 463; see also
Strickland, 466 U.S. at 694 (“A reasonable probability is a probability sufficient
to undermine confidence in the outcome.”).
      To determine whether appellate counsel’s performance “undermine[d]
the result on direct appeal, making the sentence unfair or unreliable,” we must
“counter-factually determine the probable outcome on appeal had counsel”
properly framed his argument. Williamson, 183 F.3d at 463. Trial counsel’s
failure to object to the limited time permitted for oral argument constrained
us, on direct appeal, to review the issue for plain error. See Holt, 493 F. App’x
at 522. We must determine whether there is a reasonable probability that the
direct appeal would have reached a different result if appellate counsel had




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recognized that plain error review applied and offered proof regarding other
closing arguments Anderson would have made if given additional time.
       “To demonstrate plain error, ‘an appellant must show (1) a forfeited
error, (2) that is clear or obvious, and (3) that affects [the appellant’s]
substantial rights.’” United States v. Moreno, 857 F.3d 723, 727 (5th Cir. 2017)
(quoting United States v. Cordova-Soto, 804 F.3d 714, 722 (5th Cir. 2015)).
“Even if those prongs of the test are satisfied, reversal is warranted ‘only if the
error seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings’ and this court chooses to exercise its discretion to correct the
error.” Moreno, 857 F.3d at 727 (quoting Cordova-Soto, 804 F.3d at 722).
       We conclude that the direct appeal panel would not have deemed the
trial court’s error “clear or obvious” even under the counter-factual scenario.
The direct appeal panel stated that the district court’s limitation on closing
argument “arguably” amounted to an abuse of discretion. See Holt, 493 F.
App’x at 521. An error is not “clear or obvious” if it is “subject to reasonable
dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009). To succeed in this
appeal, Anderson would need to establish that appellate counsel’s proper
argument would have moved the question of whether the trial court erred from
“arguable” to “clear or obvious,” i.e., beyond reasonable dispute. Appellate
counsel’s argument could not have changed the fact that trial counsel received
the extra minute he requested, and failed to make any further objection.
Anderson has offered no authorities establishing that the district court’s
limitations were, beyond any reasonable dispute, an abuse of discretion even
where trial counsel received precisely what counsel requested. 3


       3 We decline Anderson’s invitation to “expand” the certificate of appealability to
include trial counsel’s performance. Cf. United States v. Reed, 719 F.3d 369, 372 n.1 (5th Cir.
2013) (confining review to the claims upon which a certificate of appealability was granted).


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II.     Anderson’s false testimony claim
        Anderson also contends he was convicted through the Government’s
knowing presentation of false testimony. “To establish a due process violation
based on the government’s use of false or misleading testimony, [Anderson]
must show that (1) the testimony in question was actually false; (2) the
testimony was material; and (3) the prosecution had knowledge that the
testimony was false.” United States v. Webster, 392 F.3d 787, 801 (5th Cir.
2004). “[A] conviction obtained by the knowing use of perjured testimony is
fundamentally unfair, and must be set aside if there is any reasonable
likelihood that the false testimony could have affected the judgment of the
jury.” United States v. Bagley, 473 U.S. 667, 678 (1985) (internal quotation
marks and citation omitted). The district court is required to hold an
evidentiary hearing on this claim “[u]nless the motion and the files and records
of the case conclusively show [Anderson] is entitled to no relief.” 28 U.S.C. §
2255.
        The district court did not hold an evidentiary hearing, and did not reach
the question of whether any trial testimony was actually false. Rather, it ruled
that Anderson’s claim failed because Anderson showed “no basis [from which]
to conclude that the [G]overnment knew of any false evidence being presented.”
We conclude that Steven Adams’ January 10, 2016, letter, which was not before
the district court, 4 warrants remanding to the district court to re-determine if



        4Anderson moved to supplement the record with Adams’ letter, and the Government
opposed. Though we do not lightly grant motions to supplement the record with material not
presented to the district court, see Ghali v. United States, 455 F. App’x 472, 476 (5th Cir.
2011) (unpublished) (“The purpose of [Federal Rule of Appellate Procedure] 10(e) is to ensure
that the record on appeal accurately reflects what happened in the district court . . . not . . .
to ‘supply what might have been done [in the district court] but was not.’”) (quoting United
States v. Page, 661 F.2d 1080, 1082 (5th Cir. 1981)), “it is clear that the authority to do so
exists,” Gibson v. Blackburn, 744 F.2d 403, 405 (5th Cir. 1984). In this case, we are persuaded


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Anderson is entitled to an evidentiary hearing. Though we have long viewed
unsupported recanting affidavits with extreme suspicion, see Summers v.
Dretke, 431 F.3d 861, 872 (5th Cir. 2005), Adams’ affidavit is corroborated by
extensive evidence, including Adams’ own written statements prior to his
testimony and numerous witness statements since.
      In September 2009, Adams wrote a letter stating that “at no time” had
he ever witnessed Anderson, or anyone around him, “doing any drugs or being
involved in any illegal activity.” David Burney, Adams’ former cellmate, claims
that Adams directly informed the prosecutor of this letter prior to the trial.
Indeed, there is little doubt that the prosecutor was aware of the 2009 letter
given that he questioned Adams about it during Anderson’s trial. Further,
Anderson’s defense counsel read the entirety of the letter into the trial record.
      If the prosecutor was aware of the 2009 letter, then the prosecutor was
aware that Adams had claimed that Anderson had no connection to illegal drug
activity. Nonetheless, through the prosecutor’s direct questioning, Adams
testified that Anderson was involved in the purchase of methamphetamine. At
that time, Adams disavowed his 2009 letter by claiming that he had written
those statements under pressure from Anderson.
      Adams now claims that his 2009 letter was “the truth” and that he “made
up” his trial testimony “because of a promise [from the prosecution] on a
[lenient] sentence.” This 2016 letter, directly from Adams, is significant
because it both corroborates, and is corroborated by, statements in the record
indicating that Adams testified falsely.




that Adams’ repudiation of his trial testimony warrants the exercise of our discretion to
permit supplementation.


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      Moreover, and critically, the 2016 letter corroborates witness statements
indicating that the prosecutor both knew that Adams’ testimony was false and
coached Adams on how to falsely testify. According to Burney, upon learning
of the 2009 letter, the prosecutor told Adams “not to worry about it” as they
would “get it to where they can’t use it.” Moreover, Burney claims that Adams’
trial testimony reflected a “story” the Government “told [Adams] to come up
with.” Adams’ 2016 letter provides corroboration for Burney’s account,
claiming that the prosecutor “coached [him] on how [to] implicate” Anderson.
These allegations find further support in the statement of John Holt, who
claims that the prosecutor repeatedly encouraged him to “come up” with
incriminating statements against Anderson in exchange for leniency - despite
Holt’s repeated assertions exonerating Anderson.
      We make no determination at this time whether the prosecutor, or any
Government agent, actually knew that Adams’ testimony was false. Nor do we
make any determination of whether an evidentiary hearing is warranted. We
find only that on the facts of this case, Adams’ 2016 recanting letter is
sufficiently corroborated to warrant a remand for re-consideration by the
district court if an evidentiary hearing is required. Anderson is entitled to a
hearing “[u]nless the motion and the files and records of the case conclusively
show [he] is entitled to no relief.” 28 U.S.C. § 2255.
                                CONCLUSION
      For the reasons stated above, we AFFIRM the direct appeal panel’s
finding that Anderson has failed to show he suffered from ineffective assistance
of counsel, GRANT Anderson’s motion to supplement the record, and
REMAND the case to the district court to determine whether an evidentiary
hearing is required in light of the new evidence.




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