                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 04-6025



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

           versus


WILBERT HACKLEY, JR., a/k/a Butch,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Robert E. Payne, District
Judge. (CR-83-107)


Argued:   November 29, 2005                 Decided:   January 4, 2006


Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Steven H. Goldblatt, Director, GEORGETOWN UNIVERSITY LAW
CENTER, Appellate Litigation Program, Washington, D.C., for
Appellant. Richard Daniel Cooke, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee. ON BRIEF: Kathy J. Huang, Student Counsel,
Nathan J. Novak, Student Counsel, GEORGETOWN UNIVERSITY LAW CENTER,
Appellate Litigation Program, Washington, D.C., for Appellant.
Paul J. McNulty, United States Attorney, Michael J. Elston,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
PER CURIAM:

      Wilbert E. Hackley brings a collateral attack under 28 U.S.C.

§ 2255 (2000) to his conviction on charges arising out of his

participation in a murder during a prison riot.       Hackley relies on

allegations by fellow inmates who suggest they told the government

that Hackley was not involved in the murder and that the government

pressured them to remain silent, in violation of Brady v. Maryland,

373 U.S. 83, 87 (1963).        The district court denied Hackley’s

request for an evidentiary hearing.         We affirm because Hackley

cannot show that “there is a reasonable probability that the

suppressed evidence would have produced a different verdict.”

Strickler v. Greene, 527 U.S. 263, 281 (1999).



                                    I.

      On April 20, 1984, a jury found petitioner Wilbert E. Hackley

and   his   codefendants   guilty   on   charges   stemming   from   their

involvement in a prison riot and the murder of Gregory Gunter.         It

convicted Hackley on four counts: murder, 18 U.S.C. § 1111 (2000),

attempting to cause and assist in a mutiny and riot, id. § 1792,

conveyance of a weapon within a federal penal institution, id.

§ 1791, and assaulting and impeding an officer of a United States

penal institution, id. § 111.       On May 1, 1984, the district court

sentenced Hackley to life in prison and three consecutive ten-year

sentences for his crimes.     This court affirmed his conviction on


                                     3
direct appeal, noting that “evidence of guilt as to each defendant

and each count was overwhelming.”    See United States v. Hackley,

No. 84-5149(L), slip op. at 9 (4th Cir. Apr. 24, 1985).

       Inmates murdered Gunter during a riot at the Petersburg,

Virginia Federal Correctional Institution on December 25, 1982.

Hackley was an inmate at the prison and Gunter was a correctional

officer and construction and maintenance foreman. The riot started

in the prison dining hall when inmates from New York began fighting

with inmates from the District of Columbia.   Correctional officers

rounded up the New York inmates and escorted them out of the dining

hall into the prison compound.    As they were leaving, a New York

inmate cast a concrete urn through a dining hall window.       The

District of Columbia inmates subsequently armed themselves with

items appropriated from the prison kitchen and pursued the New York

inmates through the broken window.

       Gunter, who was off duty at the time, was radioed about the

disturbance and entered the compound.    He attempted to stop the

District of Columbia inmates, but six to eight of them attacked

him.   An inmate struck him in the head with a three-foot long soup

paddle, and other inmates beat and stabbed him.        The medical

examiner noted that Gunter was stabbed eight times and had blunt-

impact injuries on his face consistent with the soup paddle.    He

died of his wounds.




                                 4
      Numerous correctional officers present during the riot either

testified directly that Hackley wielded the soup paddle against

Gunter   or   offered   corroborating        support    for    that     conclusion.

Officers   Donnie    Smith,    J.R.   Randle,    and     Hulon     Willis    had   an

unobstructed view of the unfolding events from a cellblock facing

the compound.       Smith identified Hackley as the inmate who hit

Gunter with the soup paddle.            Randle, who had known Hackley by

sight and name before the riot, also testified that Hackley struck

Gunter with a soup paddle.         Willis could not recognize Hackley as

the perpetrator, but he noted that Randle identified Hackley during

the attack.     Officer Robert Lagoda did not witness the attack, but

he did see Hackley carrying an aluminum paddle in the compound.

Officer Freddie Mercado was in the compound during the incident,

and   identified    Hackley   as   an   attacker       who    carried    a   paddle.

Officer Paul McCauley, also in the compound, testified that he saw

an inmate hit Gunter with a soup paddle, but he did not have a

clear view of the perpetrator.              Finally, Officer Chauncey Jones

testified that he saw Hackley hitting Gunter with a silver weapon

that was consistent with the paddle.

      Several    inmates      testified       similarly       as   to    Hackley’s

involvement.     Both Hugh Jackson and Carroll Fortun attested that

they were in the compound during the attack and saw Hackley strike

Gunter with a paddle.         Ronald Kelly did not see the attack on




                                        5
Gunter, but testified that he saw Hackley standing over Gunter

after Gunter had collapsed to the ground.

     On April 4, 2000, sixteen years after his conviction, Hackley

filed a petition in Pennsylvania under 28 U.S.C. § 2241 (2000).

His petition was eventually transferred to the Eastern District of

Virginia and treated as one under § 2255.          On July 8, 2002, Hackley

provided an amended § 2255 motion.           The district court determined

that Hackley’s pro se motion alleged two prosecutorial misconduct

claims based on Brady v. Maryland, 373 U.S. 83 (1963), and an

actual innocence claim.       The evidence in his petition included a

letter from inmate Ronald Kelly; affidavits from Michael Anthony

Hood and Ken Anderson, two inmates present during the riot who did

not testify at the original trial; and newspaper articles about

Officer Jones’s conviction for beating inmates after the riot.

     Ronald Kelly wrote a letter to a federal judge in the state of

Washington on April 16, 1990, that recanted his testimony six years

after the trial.     Kelly noted that after the riot he could not

identify Hackley as an attacker in a photographic spread, but

conceded the point when an FBI agent held up Hackley’s picture and

said Hackley was present. Kelly also stated that he told Assistant

U.S. Attorney George Metcalf that other inmates, including Hugh

Jackson,   had   fabricated    their       testimony.   Metcalf   allegedly

threatened him in response to these allegations.          Hackley received

a copy of this letter in 1990.     He sent it to his grandfather where


                                       6
it was lost and not recovered until November 1999.                 His first use

of the letter was in this petition.

     Two former inmates, Michael Anthony Hood and Ken Anderson,

provided   affidavits      on   June    17,    2002,    and   August   14,   2002,

respectively, that gave Hackley an alibi during Gunter’s murder.

Hood summarily asserted that he witnessed the murder and that

Hackley    was   absent,    but    he    did    not     indicate   the   inmates

responsible.     Both Anderson and Hood averred that Hackley was

inside Virginia Hall, a housing unit separated from the murder

scene, during the prison riot.                Anderson allegedly spoke with

Hackley a half-hour into the riot.              After the riot, Hood stated

that he told Officer Jones that Hackley was not involved, but Jones

beat him until he retracted his statements and implicated Hackley.

Hood asserts that fear prevented him from coming forward with this

information sooner, and Anderson noted that he was unaware Hackley

was convicted of the Gunter murder until 2002.

     The district court denied all grounds of relief on November 4,

2003, without an evidentiary hearing.            It initially noted that the

one-year statute of limitations barred Hackley’s first Brady claim,

which was based on the Kelly letter.              See 28 U.S.C. § 2255.         It

then concluded that Hackley’s second Brady claim, based on the Hood

affidavit, failed on the merits, because Hackley could not meet the

materiality requirement necessary for such a claim. See Strickler

v. Greene, 527 U.S. 263, 281 (1999).                   The district court also


                                        7
dismissed Hackley’s actual innocence claim, which was based on all

of his new evidence, because he failed to prove that no reasonable

jury would have convicted him if it took into account the new

evidence.    See Schlup v. Delo, 513 U.S. 298, 327 (1995).

       Hackley subsequently filed a request for a certificate of

appealability (COA), as required by 28 U.S.C. § 2253(c)(1)(B). The

district court did not issue a COA for either Hackley’s first Brady

claim or his actual innocence claim.               It did, however, grant

Hackley a COA as to the second Brady claim, based on the Hood

affidavit.    On July 27, 2004, we rejected Hackley’s application to

expand the COA.       Hackley appeals his certified claim and also

requests that we reconsider our previous refusal to enlarge the

COA.



                                    II.

       Hackley first argues that the district court erred in denying

an evidentiary hearing on the Brady claim stemming from the Hood

affidavit.     A district court can deny a § 2255 motion without a

hearing if the record conclusively shows the prisoner is not

entitled to relief.     See 28 U.S.C. § 2255.

       Under Brady, the government violates due process when it fails

to provide a defendant with material exculpatory evidence.                  See

Strickler, 527 U.S. at 280; Brady, 373 U.S. at 87.                 In order to

prove    a   Brady   violation,   the       defendant   has   to   meet   three


                                        8
requirements:   (1) the evidence must be favorable to the accused,

(2) the government must have suppressed it, and (3) the defendant

must suffer prejudice.   See Strickler, 527 U.S. at 281-82.

     To meet the prejudice prong, the defendant has to show that

the suppressed evidence is material.     Evidence is material “if

there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have

been different.”   Strickler, 527 U.S. at 280 (internal quotation

marks omitted).    In determining whether a reasonable probability

exists, courts consider “whether the favorable evidence could

reasonably be taken to put the whole case in such a different light

as to undermine confidence in the verdict.”   Id. at 290 (internal

quotation marks omitted).

     We assume without deciding that Hackley’s claim based on the

Hood affidavit satisfies the first two Brady requirements and turn

to materiality.1   Hackley argues that in assessing materiality we

should consider the Kelly letter as evidentiary support for the

Hood affidavit even though, standing alone, it would be time-

barred.   It is far from certain that we can consider the Kelly

letter at all given that Hackley discovered it ten years before he




     1
      The district court found this claim was timely filed because
Hackley could not have discovered the facts supporting it prior to
June 17, 2002. See 28 U.S.C. § 2255. We assume it is timely.

                                 9
filed a claim.    But even assuming we can, Hackley’s Brady claim

still falls short of satisfying materiality.2

     As this court made clear on direct appeal, the evidence

against Hackley on all counts was “overwhelming.” See Hackley, No.

84-5149(L), slip op. at 9.      Considering the new evidence, the

government’s case against Hackley is not put in “such a different

light as to undermine confidence in the verdict.”    Strickler, 527

U.S. at 290 (internal quotation marks omitted); see also United

States v. Ellis, 121 F.3d 908, 918 (4th Cir. 1997) (noting that

courts do not ignore other evidence of guilt presented at trial in

assessing materiality).    The key government witnesses who place

Hackley at the murder scene or with the paddle are unaffected by

the new evidence.   Officers Smith and Randle identified Hackley as

the attacker who hit Gunter with a soup paddle.     Officer Mercado

similarly testified that Hackley was an attacker who had a paddle.

Officer Lagoda saw Hackley in the compound with a paddle during the

riot.     And inmate Fortun testified that he saw Hackley strike

Gunter.    Against these numerous eyewitness accounts, Hood’s terse

statement that Hackley was not in the compound and Kelly’s letter

undermining the credibility of inmate witnesses pale in comparison.




     2
      Hackley does not contend that the government suppressed the
information in the Anderson affidavit. That affidavit is thus not
Brady material and does not support Hackley’s Brady claim.

                                 10
     Moreover, the Hood affidavit is of questionable reliability.

Although Hood now provides Hackley with an alibi -- that Hackley

was in Virginia Hall -- Hackley does not contend that he advanced

this theory at trial.    Nor has Hackley provided any indication as

to why he did not present witnesses to testify as to his location

in Virginia Hall.    Hackley would have known others were around him

if he truly was in Virginia Hall at the time of the murder.

Anderson, for example, allegedly spoke with him in Virginia Hall

during the riot.    As a separate matter, Hood’s long delay in coming

forward casts further doubt on his credibility. Hood suggests that

he was afraid of Officer Jones who allegedly beat him, but, as the

district court noted, he was transferred away from Jones before he

presented his affidavit.     Finally, Hood’s statements come almost

twenty years after the fact, and his memory as to the events that

occurred is therefore less reliable.

     The Kelly letter also does little to put the original verdict

in a different light.       See Strickler, 527 U.S. at 290.      The

government has provided a sworn affidavit in the record from

Assistant U.S. Attorney Metcalf that disputes Kelly’s assertions.

Metcalf averred that Kelly’s accusations were untrue and that he

had no knowledge that any inmate falsely testified. See also Evans

v. United States, No. 83-00107-02-R, slip op. at 4 (E.D. Va. May

22, 1995) (relying on Metcalf’s affidavit to reject the § 2255

petition of Hackley’s codefendant, also predicated on the Kelly


                                  11
letter).    Further, Kelly’s letter effectively recants much of his

trial testimony, and recantation statements are necessarily viewed

with considerable skepticism. See, e.g., United States v. Johnson,

487 F.2d 1278, 1279 (4th Cir. 1973) (per curiam) (recantation

testimony    “looked    upon   with   the   utmost    suspicion”)   (internal

quotation marks omitted); see also Wadlington v. United States, 428

F.3d 779, 784 (8th Cir. 2005) (same); United States v. Ogle, 425

F.3d 471, 478 (7th Cir. 2005) (same).

     In short, Hackley’s contentions would require the jury to

ignore the “overwhelming” evidence of guilt and to rely on Kelly’s

and Hood’s suspect eleventh-hour statements.                As such, these

belated    statements    simply   cannot    satisfy    Hackley’s    burden   of

proving there is a reasonable probability that the jury verdict

would have been different if they had been considered.              Strickler,

527 U.S. at 280.       Hackley has thus failed to prove materiality.3




     3
      Hackley also argues that we should reconsider our previous
refusal to issue a COA for his actual innocence claim. But that
claim is even more difficult to bring than a Brady claim, as it
requires the petitioner to prove that “no reasonable juror would
have convicted him in the light of the new evidence.” Schlup, 513
U.S. at 327. Even with all of Hackley’s newly proffered evidence,
a reasonable juror could most certainly still have convicted him.
We therefore decline to issue a COA on this claim.

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                                    III.

    For the foregoing reasons, the district court did not err in

dismissing   Hackley’s   §   2255   petition   without   an   evidentiary

hearing.

                                                                 AFFIRMED




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