   Case: 09-10009       Document: 00511222251          Page: 1    Date Filed: 09/01/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         September 1, 2010
                                     No. 09-10009
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

THOMAS REEDY,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 4:07-CV-24
                              USDC No. 4:00-CR-54-1




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Thomas Reedy, federal prisoner # 25673-177, was convicted by a jury of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-10009     Document: 00511222251 Page: 2          Date Filed: 09/01/2010
                                  No. 09-10009

various counts relating to child pornography. In his 28 U.S.C. § 2255 motion, he
argued in relevant part that he had learned through new evidence that the gov-
ernment violated his due process rights by presenting a trial exhibit that had
been fraudulently manufactured by prosecution witnesses. The district court de-
termined that that claim was procedurally barred, because Reedy could have
raised it at trial or on direct appeal. This court granted a certificate of appeala-
bility (“COA”) on the questions “[w]hether Reedy has established cause for his
failure to raise this issue on direct appeal . . . and . . . [w]hether Reedy is able to
establish that the presentation at trial of the purportedly manufactured exhibit
resulted in prejudice to Reedy.” We also granted a COA on the question whether
the district court erred in failing to hold an evidentiary hearing with respect to
this claim.
      Before this court, Reedy seeks to supplement the record with exhibits that
he did not present in the district court, comprising a June 2007 magazine article
and two affidavits obtained in January 2010. “An appellate court may not con-
sider new evidence furnished for the first time on appeal and may not consider
facts which were not before the district court at the time of the challenged rul-
ing.” Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). As
a result, Reedy’s motion to supplement is DENIED.
      On appeal, Reedy asserts that he has established cause for his procedural
default, because he is relying on a 2005 magazine article that examined investi-
gations and trials occurring in Great Britain in the wake of his conviction. He
maintains that he is unable to access newer technologies and that without the
information provided in that article, he could not have discovered earlier that
the trial exhibit was fraudulent. A review of the magazine article in question re-
flects that the author visually ascertained discrepancies in the exhibit and cor-
roborated his findings by considering a public access website created before Ree-
dy’s trial that provided archives of webpages.
      There is no indication that the purported falsity of the exhibit required

                                          2
   Case: 09-10009     Document: 00511222251 Page: 3         Date Filed: 09/01/2010
                                  No. 09-10009

other technological advances, and Reedy’s conclusional assertion that he needed
access to such computing improvements is insufficient to warrant relief. See
Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990). Reedy does not explain why
he was unable to conduct a similar visual inspection of the exhibit at the time
of trial. Although he contends that he was unaware of the existence of the archi-
val website until he read the 2005 article, he has not established that “the factu-
al . . . basis for the claim was not reasonably available” at the time of trial. Unit-
ed States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
      Because Reedy has not established “that ‘some objective factor external to
the defense’ prevented him from raising” the claim, he has not established cause
to overcome the procedural bar. Id. (citation omitted). We thus need not address
whether he has established that he will suffer prejudice as a result of imposing
the bar. See United States v. Frady, 456 U.S. 152, 168 (1982).
      Reedy maintains that his conviction was the result of a miscarriage of jus-
tice and that he is actually innocent. Although a claim of miscarriage of justice
may constitute an exception to the cause-and-prejudice test, the evidence pre-
sented at trial and in conjunction with Reedy’s § 2255 motion does not reflect
that this is “an extraordinary case . . . in which a constitutional violation has
probably resulted in the conviction of one who is actually innocent.” United
States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (en banc) (internal quotation
marks and citation omitted). Additionally, “[n]o evidentiary hearing is required”
if a prisoner is unable to satisfy the cause and prejudice standard for overcoming
a procedural bar. Woods v. Whitley, 933 F.2d 321, 323 (5th Cir. 1991). As a re-
sult, the judgment denying habeas corpus relief is AFFIRMED.




                                          3
