                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-2486
                                  ___________

William Patrick Griffin,               *
                                       *
      Movant - Appellant,              * Appeal from the United States
                                       * District Court for the
      v.                               * Eastern District of Missouri.
                                       *
United States of America,              *      [UNPUBLISHED]
                                       *
      Respondent - Appellee.           *
                                  ___________

                             Submitted: May 15, 2002

                                 Filed: July 26, 2002
                                  ___________

Before BOWMAN, LOKEN and BYE, Circuit Judges.
                          ___________

PER CURIAM.

       William Patrick Griffin appeals the denial of his motion for post-conviction
relief under 28 U.S.C. § 2255. Griffin was convicted after a jury trial for the
unauthorized transfer of food stamps in violation of 7 U.S.C. § 2024(b). Griffin
admitted he sold food stamps to Jacqueline Murphy for ninety-five percent of their
face value. But he claimed Murphy was his employer and he thought it was
appropriate to redeem food stamps in this manner. Murphy had been a participant in
more widespread food stamp fraud. When caught, she cooperated and testified for
the government, repeatedly denying that Griffin was her employee. Additional
background facts are set forth in our opinion affirming the conviction on direct
appeal. United States v. Griffin, 215 F.3d 866 (8th Cir. 2000).

        After Griffin was sentenced to nine months in prison, but before he commenced
serving this sentence, he discovered in the files of the Country Fed Meat Company
a copy of a letter dated April 3, 1997, addressed to “U.S.D.A. Food and Nutrition”
and appearing to bear Jacqueline Murphy’s signature. The letter declared that
Murphy was licensed to redeem food stamps, that she was “disassociating” from
Country Fed Meat Company, and that she would be operating as Jacque’s Meat
Company with William Griffin as one of her two “sales agents.” Griffin then filed
this § 2255 motion, claiming the letter is newly discovered evidence establishing that
he was Murphy’s employee and impeaching Murphy’s contrary trial testimony.
Griffin accompanied his § 2255 motion with a request that the Department of
Agriculture produce this letter and other documents, and a Motion for Leave To
Conduct Discovery “to discover whether Jacqueline Murphy will admit that she
authored” the letter. The government responded with an affidavit declaring that
U.S.D.A.’s file relating to Jacque’s Meat Company was introduced at trial, the letter
was not in that file, and a further careful review of Food and Nutrition Service records
failed to uncover the original or a copy of the letter.

       The district court denied Griffin’s request for discovery and his § 2255 motion,
concluding he had failed to satisfy the stringent standards for a new trial based upon
newly discovered evidence -- that a reasonably diligent effort would not have
uncovered the letter prior to trial, and that this new evidence would probably result
in acquittal. On appeal, Griffin argues the district court erred in denying his § 2255
motion without granting the requested discovery. We disagree. Griffin strives to fit
his claim under Brady v. Maryland, 373 U.S. 83 (1963), but he has no evidence
refuting the government’s sworn statement that the Murphy letter was never in
U.S.D.A. files and thus was not withheld from the defense prior to or at the trial. As
for Griffin’s claim based upon newly discovered evidence, we agree with the district

                                          -2-
court that he failed to make the requisite showing that he was sufficiently diligent in
searching for this evidence before trial, and that the new evidence “is material, more
than merely cumulative or impeaching, and likely to produce an acquittal if a new
trial is granted.” United States v. Dogskin, 265 F.3d 682, 685 (8th Cir. 2001). The
discovery Griffin requested would not have overcome these deficiencies.

      The orders of the district court dated May 8, 2001, are affirmed.

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -3-
