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                                                                                   [PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                                    _________________

                                       No. 14-11960
                                    _________________

           D. C. Docket Nos. 9:08-cv-81283-JAL; 9:01-cr-08080-DMM-1

ELROY A. PHILLIPS,

                                                                   Petitioner-Appellant,

                                             versus

UNITED STATES OF AMERICA,

                                                                   Respondent-Appellee.

                                    _________________
                      Appeal from the United States District Court
                             for the Southern District of Florida
                                  ________________

                                     (February 23, 2017)

Before MARCUS, DUBINA, and WALKER, * Circuit Judges.




       * Hon. John Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by
designation.
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DUBINA, Circuit Judge:

      This is an appeal from the district court’s order denying Elroy Phillips’s

(“Phillips”) motion to vacate his sentence pursuant to 28 U.S.C. § 2255. We

granted Phillips a certificate of appealability (“COA”) pursuant to 28 U.S.C. §

2253. After conducting oral argument, reading the parties’ briefs, and reviewing

the record, we affirm in part, vacate in part, and remand for resentencing.

                                I. BACKGROUND

      A grand jury charged Phillips with numerous drug related offenses occurring

from December 1999 to June 2001, and charged him with being a felon in

possession of ammunition from October 2000 to November 1, 2000, and on June 8,

2001. Phillips proceeded to trial, and the jury found him guilty on one count of

conspiracy to distribute less than five grams of crack cocaine, in violation of 21

U.S.C. § 846 (Count 1); one count of crack cocaine distribution, in violation of 21

U.S.C. § 841(a)(1) & (b)(1)(C) (Count 9); one count of cocaine possession, in

violation of 21 U.S.C. § 844(a) (Count 11); and two counts of possession of

ammunition after a prior felony conviction, in violation of 18 U.S.C. § 922(g)(1)

and § 924(e) (Counts 14 & 17). The jury acquitted Phillips on the remaining

counts of the 21-count second superseding indictment. The district court imposed

sentences of 360 months’ imprisonment on Counts 1, 9, 14, and 17, each running

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concurrently with a 24 month sentence on Count 11.

      On appeal, we affirmed Phillips’s convictions, but vacated his sentences.

United States v. Phillips, 177 F. App’x 942 (11th Cir. 2006). The district court re-

sentenced Phillips to 288 months’ imprisonment on Counts 1 and 9, 24 months’

imprisonment on Count 11, and 180 months’ imprisonment on Count 14, all to run

concurrent. The district court merged Count 17 with the sentence for Count 14.

On appeal a second time, we affirmed the sentences. United States v. Phillips, 262

F. App’x 183 (11th Cir. 2008).

      In November 2008, Phillips filed a § 2255 motion to vacate and amended it

numerous times. The district court determined that Phillips raised 19 claims for

relief, and referred the matter for an evidentiary hearing. While preparing for the

evidentiary hearing, the government re-interviewed Agent Michael Ghent

(“Ghent”), an officer with the West Palm Beach Police Department (“WPBPD”),

and a primary investigator in Phillips’s underlying drug offenses. Ghent initially

provided information to federal authorities about a drug purchase he and a

confidential informant (“CI”) made from Phillips on April 6, 2001. The authorities

relayed that information to a magistrate judge reviewing the government’s warrant

applications for Phillips’s arrest and the search of his home. After the magistrate

judge issued the search warrant, officers found drug paraphernalia, a gun box, and


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ammunition in Phillips’s home. Ghent also testified at trial that he conducted

surveillance on Phillips from January to April 2001, and he and a CI participated in

a controlled buy of crack cocaine from Phillips on April 6, 2001.

      During the preparation for the evidentiary hearing, the government

discovered that not only had Ghent lied at trial, but, during the investigation and

subsequent trial of Phillips, Ghent had been under investigation by his own police

department for alleged criminal activities. The government investigated the

allegations against Ghent, which included a charge that he engaged in a sexual

relationship with his CI, used illegal substances, extorted a massage parlor,

falsified information on government forms, and submitted a false sworn affidavit

in a state criminal prosecution. After confirming that Ghent had provided false

testimony at Phillips’s trial and confirming that he may have committed criminal

acts during the pertinent timeframe, the government agreed to join in Phillips’s

motion to vacate Counts 1, 9, 14, and 17. The parties jointly agreed that the

conviction for Count 11 should remain.

      The district court granted in part and denied in part the § 2255 motion to

vacate. In its order, the district court agreed with the parties that Phillips’s

conviction on Count 9 should be vacated because Ghent provided the only

testimony about the April 6, 2001, drug transaction that supported that charge. On


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Count 1, the district court found ample co-conspirator testimony, apart from

Ghent’s perjured testimony, from which the jury could have concluded that

Phillips was involved in a conspiracy to distribute five grams or less of crack

cocaine.

      As to Counts 14 and 17, the district court found that the basis for these

counts of conviction was the discovery of ammunition during a search of Phillips’s

residence pursuant to a valid search warrant. Although the probable cause affidavit

supporting the application for the search warrant contained Ghent’s false

statements about the April 6, 2001, drug transaction, the district court noted other

evidence that supported the probable cause affidavit, such as co-conspirator

statements, Phillips’s behavior during a brief search of his home, and Phillips’s

possession of cocaine during another encounter with police. Because the search

was supported by probable cause without Ghent’s false statements, the district

court determined that the evidence obtained from the search would have been

admissible. Thus, it concluded that these convictions were supported by sufficient

valid evidence and there was no reasonable probability that the jury would have

acquitted Phillips on these counts. Moreover, the district court reasoned that

Ghent’s testimony was not relevant to Phillips’s convictions on Counts 14 and 17




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because Ghent was not present during the execution of the search warrant. The

district court denied Phillips’s remaining claims for relief and denied him a COA. 1

                                 II. STANDARD OF REVIEW

       We review de novo the district court’s legal determinations on a 28 U.S.C. §

2255 motion to vacate and review for clear error the district court’s factual

findings. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004).

                                     III. DISCUSSION

       A. Count 1

       Contrary to the district court’s finding, we agree with the parties that

Phillips’s conviction for conspiracy to distribute crack cocaine, Count 1, should be

vacated. Ghent’s false testimony was material to the government’s case, and the

government concedes that it cannot show that the perjured testimony did not have a

substantial and injurious effect on the verdict. Thus, we vacate Phillips’s

conviction on Count 1 and remand to the district court for re-sentencing.



       1
          We granted a COA as to whether Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194
(1963), and its progeny applied during Phillips’s suppression proceedings, and if so, whether
Phillips’s rights under Brady and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972),
were violated based on the government’s failure to disclose the alleged misconduct and false
statements of Michael Ghent, a police officer whose statements were included in the criminal
complaint and applications for an arrest warrant and a search warrant in Phillips’s criminal
proceedings. However, based on the government’s concession that Count 1 should be vacated,
and our conclusion that the district court properly excised Ghent’s false testimony in determining
that sufficient independent probable cause existed to justify the search warrant with respect to
Counts 14 and 17, we need not address these issues.
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      A defendant’s right to due process is violated when “the prosecution’s case

includes perjured testimony and . . . the prosecution knew, or should have known,

of the perjury.” United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397

(1976). This is a violation under Giglio v. United States, 405 U.S. 150, 153, 92 S.

Ct. 763, 766 (1972), and to prevail on this claim, a defendant “must establish that

the prosecutor knowingly used perjured testimony . . . and that the falsehood was

material.” Tompkins v. Moore, 193 F. 3d 1327, 1339 (11th Cir. 1999) (internal

quotation marks and citation omitted). The false testimony is material “if there is

any reasonable likelihood that [it] could have affected the judgment of the jury.”

Agurs, 427 U.S. at 103, 96 S. Ct. at 2397. “The ‘could have’ standard requires a

new trial unless the prosecution persuades the court that the false testimony was

‘harmless beyond a reasonable doubt.’ ” Smith v. Sec’y, Dep’t of Corr., 572 F.3d

1327, 1333 (11th Cir. 2009) (quoting Ford v. Hall, 546 F.3d 1326, 1332 (11th Cir.

2008)). Giglio’s materiality standard is “more defense-friendly” than Brady’s.

Guzman v. Sec’y, Dep’t of Corr., 663 F.3d 1336, 1348 (11th Cir. 2011) (citation

omitted). The question of materiality is one of law which we review de novo. See

id. at 1339.

      When a petitioner raises a Giglio error on collateral review, habeas relief

will be granted only “if the [c]onstitutional violation at the trial level resulted in


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‘actual prejudice’ to the petitioner.” Id. at 1347 (quoting Brecht v. Abrahamson,

507 U.S. 619, 637, 113 S. Ct. 1710, 1722 (1993)). “The alleged error must have

had a ‘substantial and injurious effect or influence in determining the jury’s

verdict.’” Id. (quoting Brecht, 507 U.S. at 637, 113 S. Ct. at 1722). Our circuit

applies “the Brecht harmless error standard to the habeas review of federal court

convictions.” Ross v. United States, 289 F.3d 677, 682 (11th Cir. 2002) (per

curiam) (applying the Brecht standard to review of a 28 U.S.C. § 2255 motion).

The harmlessness question is one of law that we review de novo. Mansfield v.

Sec’y, Dep’t of Corr., 679 F.3d 1301, 1307 (11th Cir. 2012). The question is also

one that turns on whether the Court can “say, with fair assurance,” that the verdict

“was not substantially swayed by the error”:

      If, when all is said and done, the [court's] conviction is sure that the
      error did not influence the jury, or had but very slight effect, the
      verdict and the judgment should stand . . . . But if one cannot say, with
      fair assurance, after pondering all that happened without stripping the
      erroneous action from the whole, that the judgment was not
      substantially swayed by the error, it is impossible to conclude that
      substantial rights were not affected. The inquiry cannot be merely
      whether there was enough to support the result, apart from the phase
      affected by the error. It is rather, even so, whether the error itself had
      substantial influence. If so, or if one is left in grave doubt, the
      conviction cannot stand.

O’Neal v. McAninch, 513 U.S. 432, 437–38, 115 S.Ct. 992, 995 (1995) (quotation

omitted) (brackets and ellipsis in original) (emphasis omitted).


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        The government previously conceded that Ghent offered false testimony at

trial about the April 6, 2001, undercover drug buy and that Ghent was a member of

the prosecution team, meaning that knowledge of the false statement can be

imputed to the government. See, e.g., Guzman, 663 F.3d at 1349 (noting that false

testimony of a prosecution team member is imputed to the prosecutor). On appeal,

the government reasserts that Ghent provided false trial testimony and maintains

that it cannot meet its burden of demonstrating that Ghent’s testimony was

immaterial. It was the sole evidence the jury had to convict Phillips on this count.

The government’s case against Phillips was weak, and there is thus “grave doubt

about whether [the Giglio error] had substantial and injurious effect or influence in

determining the jury’s verdict.” Ross, 289 F.3d at 683 (quotation omitted). Thus,

the government concedes that it cannot demonstrate that Ghent’s testimony

satisfies the Brecht harmlessness standard, and it acknowledges that there is a

reasonable likelihood that the jury would have acquitted Phillips on this count had

Ghent not testified. 2 Accordingly, we vacate Phillips’s conviction on Count 1 and

remand for re-sentencing.




       2
          We commend the government for confessing error as to Count 1. As an officer of the
court, the government attorney is required to correct or remedy any false testimony of which he
knows. See In re Global Energies, LLC, 763 F.3d 1341, 1348–49 (11th Cir. 2014) (noting that
the rules regulating attorney conduct required officer of the court to correct or remedy testimony
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              B. Counts 14 and 17

       Phillips challenges these counts for illegal possession of ammunition by

arguing that Ghent’s false statements in the affidavit to support the search warrant

tainted the warrant. The government responds that the district court properly

excised the false information provided by Ghent from its review of the warrant

application and found sufficient independent probable cause to justify the search

warrant. See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978). Upon

review, we conclude that the district court properly excluded Ghent’s false

testimony from its probable cause warrant consideration.

       The warrant application contained an affidavit executed by DEA Agent John

Enockson, cataloging evidence of Phillips’s drug activities and firearm possession.

The affidavit included three paragraphs summarizing Ghent’s undercover drug buy

with Phillips on April 6, 2001. Based on the parties’ agreement that this

information from Ghent was false, the district court properly excised this

information. The remaining affidavit information included testimony about a

police visit to Phillips’s residence, in an attempt to execute an arrest warrant on

another individual, where officers heard toilet-flushing sounds, saw a water-




he knew was false) (citing FLA. BAR CODE PROF. RESP. D.R. 4-3.3(a)(4) (2010)). See also
MODEL RULES OF PROF’L CONDUCT R. 3.3(a)((3) (2016).
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saturated bathroom floor, and observed white powder residue near a safe. The

affidavit also contained information summarizing interviews of co-conspirators

who stated that they had helped Phillips manufacture and distribute drugs and that

they had observed Phillips with firearms. In addition, it contained information that

police had recovered cocaine and $1,610 in cash from Phillips during his June 8,

2001, arrest for possession of powder cocaine, and that Phillips had prior drug and

firearm-related convictions. Moreover, Ghent was not present at the search that

produced evidence of Phillips’s ammunition possession. Hence, we conclude that

there was sufficient evidence, apart from Ghent’s false testimony, to provide

probable cause to justify the search warrant that led police to the discovery of

ammunition in Phillips’s residence. Accordingly, we hold that the district court

correctly denied Phillips’s relief on this claim, and we affirm his convictions on

Counts 14 and 17, ammunition possession.

      C. Count 11

      Phillips challenges his conviction on Count 11, which charged him with

possession of powder cocaine on June 8, 2001. The government counters that

Phillips abandoned this challenge. In the parties’ joint memorandum, the

government noted that at trial the defense essentially conceded that Phillips was

guilty of this offense, and it proffered that this conviction was not subject to the


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amended motion to vacate. (R. Joint Memorandum, D.E. 480 at 8 n.9, D.E. 281 at

23 n. 26). The district court agreed with the government and concluded that

Phillips abandoned this challenge.

      We conclude from the record that the district court correctly found that

Count 11 was not subject to Phillips’s amended motion to vacate. Phillips did not

seek reconsideration of the district court’s order finding that Count 11 was not

asserted in his amended § 2255 motion. As such, Phillips deprived the district

court of any opportunity to review any challenge to Count 11. Accordingly, we

hold that Phillips abandoned any challenge to Count 11, and we affirm this

conviction.

                                V. CONCLUSION

      We affirm the district court’s judgment affirming Phillips’s convictions on

Counts 14 and 17, and its finding that Phillips abandoned any challenge to Count

11. However, we disagree with the district court’s disposition as to Count 1, and

we vacate that count and remand this case for re-sentencing.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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