Opinion
Case No. 95-20086-JWL, 03-3206-JWL
November 6, 2003
MEMORANDUM ORDER
On August 9, 1996, a jury convicted defendant of conspiracy to distribute and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841 (a) and money laundering under 18 U.S.C. § 1956(a)(1)(B)(i). He is currently serving a 327-month prison sentence. This matter is presently before the court on Mr. Andersen's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (doc. 1072). In his motion, Mr. Anderson raises two general grounds for relief. First, he asserts that his trial counsel's performance was constitutionally deficient in several respects. Second, he asserts that the government suborned perjury by knowingly permitting various witnesses to testify falsely.
Mr. Anderson's motion for an extension of time to supplement his petition is also pending before the court (doc. 1073). In that motion, he requests an extension of time to supplement his petition in light of his efforts to obtain certain additional discovery and copies of exhibits from the government. In resolving a related motion, the court previously granted in part and denied in part Mr. Anderson's motion to obtain copies of various documents that he believed he needed in order to file his habeas petition. The court, however, advised Mr. Anderson that because he was not proceeding in forma pauperis he would need to submit payment for copies of the documents in advance of receiving the documents. Mr. Anderson never submitted such payment and never supplemented his request for in forma pauperis status with the requisite certification regarding the amount of money in his institutional account. Thus, it is clear that Mr. Anderson's efforts to obtain the additional documents have ceased. Moreover, no where in his habeas petition does Mr. Anderson state the need for additional documents to support his claims. For these reasons, Mr. Anderson's motion for an extension of time to supplement his petition is denied.
As set forth in more detail below, the court denies Mr. Anderson habeas relief with respect to the vast majority of his claims. However, with respect to Mr. Anderson claim that his counsel provided constitutionally ineffective assistance to Mr. Anderson by failing to interview and calling to testify Craig Curtis and Tacretia Anderson, potential alibi witnesses, the court will permit Mr. Anderson an opportunity to provide evidence of this claim in the form of affidavits from Mr. Curtis and Ms. Anderson to the extent outlined below. Assuming Mr. Anderson provides the affidavits to the court no later than Friday, December 12, 2003, the court will then make a determination as to whether an evidentiary hearing is appropriate. Background
As an initial matter, it appears to the court that Mr. Anderson's habeas petition is untimely as he was convicted in August 1996, the Tenth Circuit affirmed his drug convictions in August 1999, Mr. Anderson did not file a petition for write of certiorari with the Supreme Court, and yet Mr. Anderson did not file his habeas petition until May 2003. See United States v. Burch, 202 F.3d 1274, 1279 (10th Cir. 2000) (If a prisoner does not file a petition for writ of certiorari with the United States Supreme Court after his direct appeal, the one-year limitation period begins to run when the time for filing a certiorari petition expires). Mr. Anderson did file an appeal with the Tenth Circuit in July 2000 on the limited issue of whether his sentence implicated the Supreme Court's Apprendi decision and the Circuit affirmed Mr. Anderson's sentence in May 2002. While Mr. Anderson's habeas petition was filed within one year of the Tenth Circuit's decision on the Apprendi issue, the court does not believe that this subsequent appeal has any impact on the running of the one-year statute of limitations concerning the underlying convictions. In any event, it is well established in the Tenth Circuit that the AEDPA's one-year statute of limitations is an affirmative defense and is not jurisdictional. See United States v. Verners, 2001 WL 811719, at *2 (10th Cir. 2001) (citing cases). In other words, the statute of limitations defense can be waived if the government does not raise the issue in response to the defendant's habeas petition. Here, the government did not raise the timeliness issue in its response to Mr. Anderson's habeas petition and, thus, the court proceeds to address Mr. Anderson's petition on the merits.
Mr. Anderson was named in five counts of a sixteen-count indictment that charged numerous defendants with drug trafficking offenses. The charges arose from an alleged conspiracy to use couriers to transport cocaine from Los Angeles to the Kansas City area for sale, and to transport the proceeds from the sale of the drugs back to Los Angeles. Count One charged Mr. Anderson and fourteen other coconspirators including Robert White with conspiring to distribute the drugs, Count Seven charged Mr. Anderson with possessing ten kilograms of cocaine with intent to distribute, Count Eight charged him and two others with possessing seven kilograms of cocaine with intent to distribute, Count Ten charged him and Mr. White with possessing one kilogram of cocaine with intent to distribute, and Count Sixteen charged plaintiff with money laundering.
All of those named in the indictment pled guilty except Mr. Anderson and Mr. White, who were tried together. The court granted Mr. White's motion for judgment of acquittal on the conspiracy count, and sent the remaining counts against Mr. Anderson and Mr. White to the jury. Mr. Anderson was convicted of conspiracy under Count One, possession of seven kilograms of cocaine with intent to distribute under Count Eight, and money laundering under Count Sixteen. The jury was unable to reach a verdict on either Count Seven, which charged Mr. Anderson with possessing ten kilograms of cocaine, or Count Ten, which charged him and Mr. White with possessing one kilogram. A mistrial was declared as to those counts.
Mr. White was acquitted on Count Ten.
The court sentenced Mr. Anderson to 396 months imprisonment on the two drug convictions and 240 months on the money laundering conviction. Mr. Anderson appealed the convictions and sentence and the Tenth Circuit affirmed the two drug convictions but reversed the money laundering conviction. See United States v. Anderson, 189 F.3d 1201, 1214 (10th Cir. 1999). In addition, the Tenth Circuit reversed the court's enhancement of Mr. Anderson's sentence for his leadership role in the offense and remanded the case for resentencing. On remand, the court sentenced Mr. Anderson to 327 months imprisonment for the affirmed drug convictions.
Discussion
In his motion for relief, Mr. Anderson asserts that his trial counsel's performance was constitutionally defective in several respects. First, Mr. Anderson claims that his trial counsel, in addition to representing Mr. Anderson, also represented Craig Curtis, an unindicted coconspirator. According to Mr. Anderson, Mr. Curtis would have testified as an alibi witness on behalf of Mr. Anderson at trial, yet Mr. Anderson's trial counsel refused to interview Mr. Curtis and refused to have him testify because trial counsel feared that Mr. Curtis, his client, would incriminate himself in the conspiracy.
By way of background, the government charged in Count One of the indictment that fourteen coconspirators, including Mr. Anderson, conspired with numerous unindicted coconspirators to distribute cocaine and cocaine base by recruiting couriers to travel from the Kansas City area to Los Angeles, pick up large quantities of the drugs, and return primarily by bus to Kansas City. Mr. Anderson and others were charged with distributing the drugs. Couriers were also allegedly recruited to travel from Kansas City to Los Angeles to return the proceeds from the drug sales. The indictment charged that the conspiracy was organized and controlled by James Walton in Los Angeles, and that he was the source of the drugs brought back for sale in Kansas City. Count One alleged numerous overt acts in furtherance of the conspiracy, several of which named Mr. Anderson. One overt act charged that Mr. Anderson picked up a courier, Dishire Davey, at the airport in Los Angeles after she had been recruited by other coconspirators to fly there and bring drugs back to Kansas City. This allegation also formed the basis of Mr. Anderson's conviction on Count Eight for aiding and abetting possession with intent to distribute seven kilograms of cocaine.
At trial, Ms. Davey testified about Mr. Anderson's involvement in the conduct underlying Count Eight. She stated that she was recruited by others to make a tap to California and bring back what she knew was an illegal substance. She further stated that Juan Harkness, an unindicted coconspirator, took her to the airport in Kansas, and that Mr. Anderson was a passenger in the Lexus that picked her up at the Los Angeles airport. She remained in California about four days before an unidentified man picked her up at the hotel and took her to the bus station. The man gave her a ticket and a box, instructing her to say that the box contained a computer terminal if she were asked about its contents. She arrived in Topeka early in the morning and paged Mr. Harkness. Before she heard from him, she was questioned by DEA agents and decided to cooperate. The agents opened the box in her presence and discovered seven kilograms of cocaine. Ms. Davey was positive at trial in her identification of Mr. Anderson as the passenger in the car that met her in Los Angeles.
Mr. Anderson denies that he was the passenger in the car that met Ms. Davey at the airport and so testified at trial. According to Mr. Anderson, Craig Curtis admitted to him that he was the passenger in the Lexus that met Ms. Davey at the airport in Los Angeles and that Mr. Curtis further advised him that he would testify to those facts at Mr. Anderson's trial. Mr. Anderson states that he urged his trial counsel to contact Mr. Curtis, who would serve as an alibi witness, but that his trial counsel refused to interview Mr. Curtis and did not call him to the stand. Mr. Anderson contends that Mr. Curtis's testimony would have refuted Ms. Davey's testimony placing Mr. Anderson in the car at the Los Angeles airport and that, by failing to call or even interview Mr. Curtis, trial counsel provided constitutionally ineffective assistance to Mr. Anderson such that the reliability of the jury's result as to Count Eight is called into question.
To prevail on his ineffective assistance of counsel claim, Mr. Anderson must demonstrate (1) that his counsel's "representation fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688 (1984), and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Assuming that Mr. Curtis would actually have testified that he was the individual in the car that picked up Ms. Davey rather than Mr. Anderson, such testimony could have added value to Mr. Anderson's defense in that it would have been testimony not only exculpating Mr. Anderson but also inculpating Mr. Curtis, an individual who appears to be a disinterested witness. Moreover, the impact of such testimony on the jury would have to be carefully considered in light of the other evidence supporting Mr. Anderson's conviction on Count Eight, as the Tenth Circuit noted that the evidence presented at trial supporting that conviction was "not overwhelming" and was based almost if not entirely on the testimony of Ms. Davey. See United States v. Anderson, 189 F.3d 1201, 1207 (10th Cir. 1999).
Mr. Anderson, however, has not submitted an affidavit from Mr. Curtis and provides only his own allegations that Mr. Curtis would have testified as Mr. Anderson represents. Such allegations do not warrant an evidentiary hearing and Mr. Anderson is required to provide such an affidavit before the court will further consider this claim. See Foster v. Ward, 182 F.3d 1177, (10th Cir. 1999) (treating factual allegations concerning potential alibi witness's testimony as true where alibi witness provided affidavit and that affidavit was unrebutted); see also United States v. Cosby, 983 F. Supp. 1022, 1026 (D. Kan. 1997) (refusing to consider defendant's representations concerning how alleged alibi witness would have testified where defendant failed to submit an affidavit from the witness establishing that he would have been willing to testify and that the nature of the testimony would have been consistent with defendant's representations). As set forth in more detail below, the court denies Mr. Anderson habeas relief with respect to the vast majority of his claims. However, with respect to Mr. Anderson claim that his counsel provided constitutionally ineffective assistance to Mr. Anderson by failing to interview and calling to testify a potential alibi witness, the court will permit Mr. Anderson an opportunity to provide evidence of this claim in the form of an affidavit from the alleged alibi witness. The affidavit must establish that Mr. Curtis would have been willing to testify at Mr. Anderson's trial in 1996 that he, rather than Mr. Anderson, was the passenger in the car that picked up Ms. Davey from the airport in Los Angeles. Mr. Anderson shall have until Friday, December 12, 2003 to submit the affidavit of Mr. Curtis and the government shall have thirty days from the date Mr. Anderson files such affidavit to file any rebuttal affidavits. After the court receives any and all affidavits from the parties, the court will make a determination as to whether Mr. Anderson is entitled to an evidentiary hearing.
In a related argument, Mr. Anderson asserts that trial counsel's performance was similarly deficient because he failed to interview Mr. Anderson's sister, Tacretia Anderson, who, according to Mr. Anderson, would have testified that Mr. Anderson was in Kansas City with her during the time he was allegedly in Los Angeles picking up Ms. Davey at the airport. If Mr. Anderson is unable to secure an affidavit from Mr. Curtis, then Ms. Anderson's testimony, standing alone, is insufficient to warrant an evidentiary hearing (assuming that Mr. Anderson could obtain an affidavit from his sister) as it is merely cumulative to testimony already elicited by counsel at trial exculpating Mr. Anderson from the incident involving Ms. Davey. In that regard, Mr. Harkness testified that Mr. Anderson could not have met Ms. Davey at the Los Angeles airport because he and Mr. Anderson were together at a concert that night in Kansas City. In such circumstances, Mr. Anderson has not shown that the testimony of his own sister would have added anything to his defense, particularly in light of the ability of the government to impeach Ms. Anderson due to her familial relationship with Mr. Anderson. See Foster v. Ward, 182 F.3d 1177, 1189 (10th Cir. 1999) (defendant failed to satisfy Strickland's prejudice requirement where he failed to show that the testimony of two witnesses whom he believed his trial counsel should have had testify would have changed the jurors' minds; testimony of witnesses was largely cumulative to other testimony that was presented at trial).
Moreover, Ms. Anderson's purported testimony is substantively different from the potential testimony of Mr. Curtis. The purported testimony of Mr. Curtis could establish not only that Mr. Anderson was not the passenger in the car at the relevant time (a fact that both Mr. Anderson and Mr. Harkness testified to at trial such that Ms. Anderson's testimony would be cumulative) but also that it was, in fact, Mr. Curtis in the car at the relevant time. The fact that Mr. Curtis's purported testimony offers not only an alibi for Mr. Anderson but affirmatively identifies another individual as the individual who was in the car elevates Mr. Curtis's testimony above Ms. Anderson's testimony-testimony that could be inaccurate in any event as it is entirely possible that while Ms. Anderson remembers being in Kansas City with her brother during a particular time frame, she may have misrecollected the actual date during which they were in Kansas City.
Nonetheless, Ms. Anderson's testimony would serve to bolster Mr. Curtis's credibility to the extent he testified that Mr. Anderson was not in the car at the relevant time. Thus, if Mr. Anderson can secure an affidavit from Mr. Curtis, as outlined above, then he may also submit an affidavit from Tacretia Anderson on or before Friday, December 12, 2003 establishing that Ms. Anderson would have been willing to testify at Mr. Anderson's trial in 1996 that Mr. Anderson was with Ms. Anderson in Kansas City on the night in question. To reiterate, however, if Mr. Anderson is not able to secure an affidavit from Mr. Curtis, then he is not entitled to submit the affidavit of Ms. Anderson, as such evidence, standing alone, is cumulative of Mr. Harkness's testimony and is otherwise readily subject to impeachment.
Mr. Anderson also claims that he was denied effective assistance of counsel because his trial counsel failed to utilize at trial various investigative reports that, according to Mr. Anderson, contradicted Ms. Davey's in-court identification of Mr. Anderson as the individual in the car when she was picked up at the Los Angeles airport. In that regard, Mr. Anderson alleges in his papers that Ms. Davey testified at trial that she gave a description of Mr. Anderson to agents at the time of her arrest. He points to the investigative report showing that Ms. Davey never gave a description of either one of the two individuals she alleged were in the car. He further highlights the affidavit of one of the agents who interviewed Ms. Davey in which the agent notes that Ms. Davey said she was met at the airport by two "unidentified" males.
While such evidence, if used, may have impeached Ms. Davey's testimony that she gave a description of Mr. Anderson at the time of her arrest, such evidence in no way undermines Ms. Davey's in-court identification of Mr. Anderson as the passenger in the Lexus at the time she was picked up at the airport. As the Tenth Circuit noted in connection with Mr. Anderson's direct appeal, Ms. Davey "was positive at trial in her identification of Mr. Anderson as the passenger in the car that met her in Los Angeles." United States v. Anderson, 189 F.3d 1201, 1206 (10th Cir. 1999). Nothing in the evidence referenced by Mr. Anderson in any way undermines or contradicts her in-court identification of Mr. Anderson and, thus, the court denies Mr. Anderson relief with respect to his claim that his counsel's failure to utilize such evidence constituted ineffective assistance.
Mr. Anderson's next ineffective assistance claim is that his trial counsel failed to contact Tracy Pugh, a witness who allegedly would have testified that certain money seized from Mr. Anderson's car was in fact coming to Mr. Pugh and was not related to any attempt by Mr. Anderson to purchase drugs. The evidence concerning the money seized from Mr. Anderson's vehicle supported Mr. Anderson's conviction of conspiracy under Count One. By way of background, Lisa Gaitan, an unindicted coconspirator, testified that she brought money to Mr. Walton, who was her high school friend, in Las Vegas and visited him in Los Angeles. She made arrangements with Mr. Walton to visit him again in Los Angeles and agreed to bring a package with her. Mr. Walton arranged for Mr. Anderson to take her to the bus station and gave her Mr. Anderson's pager number. She testified that after Mr. Anderson picked her up, they stopped by someone's house on the way to the station and Mr. Anderson went inside. He came out with a gray box about the size of a tissue box wrapped in gray tape. When they arrived at the bus station, Mr. Anderson went in and bought the ticket while she waited in the car. She had packed one bag for the trip and Mr. Anderson gave her another one. She put half her clothes in the other bag along with the box. After buying the ticket, they left to get something to eat and were stopped by the police on the way back to the station. At that point Mr. Anderson told her to say that she was going to a city other than Los Angeles. After Mr. Anderson was arrested for outstanding traffic violations and taken to a police car, Ms. Gaitan gave the police permission to check the bags and they discovered the box, opened it and found $45,000. It is apparently this sum of money that Mr. Pugh would have testified was "coming to him" and that it was not related in any way to the sale of drugs.
The court denies relief with respect to this claim as Mr. Anderson has not shown a "reasonable probability" that Mr. Pugh's testimony, assuming Mr. Pugh would have testified as Mr. Anderson suggests, would have changed the jury's verdict with respect to Count One. In that regard, ample evidence was presented to the jury regarding Mr. Anderson's involvement in the conspiracy. For example,
a search of the house in which Mr. Anderson's girlfriend lived uncovered items linking Mr. Anderson to the residence and a triple beam scale commonly used to weigh out drugs. A search of Mr. Anderson's residence revealed numerous items of expensive clothing, a set of pocket drug scales, digital drug scales, a safe containing over $50,000, a "street sweeper" shotgun and an assault rifle near the safe, and three semiautomatic handguns under the mattress in Mr. Anderson's bedroom. Government investigation of Mr. Anderson's financial situation showed that he had no legitimate source of income.Id. at 1207. In addition, phone records reveals that Mr. Anderson had made over 34,000 calls during the relevant period and that 277 of those calls were made to Mr. Walton's pager. Id. It is not reasonably probable that the jury, in the face of this evidence and Ms. Gaitan's testimony that the package was to be delivered to Mr. Walton, would have believed that the $45,000 was not related to the sale of drugs. In any event, even if they did believe that that particular sum of money was unrelated to the sale of drugs, the jury had an abundance of evidence to convict Mr. Anderson of conspiracy.
Mr. Anderson also contends that his trial counsel provided constitutionally ineffective assistance in that trial counsel failed to impeach (using certain investigative reports) Juan Harkness's trial testimony that Mr. Harkness informed agents during his first interview with them that he sold drugs to Mr. Anderson at the direction of James Walton. The court readily denies relief with respect to this claim as there is no reasonable probability that such impeachment evidence, if utilized, would have changed the result of the proceeding. As the Tenth Circuit noted in analyzing Mr. Anderson's direct appeal, Juan Harkness's testimony that he sold drugs to Mr. Anderson at the direction of Mr. Walton supported Mr. Anderson's conviction for conspiracy under Count One. While such evidence also formed the basis for the substantive count of possessing ten kilograms with intent to distribute set out in Count Seven, the jury was unable to reach a verdict on that Count and a mistrial resulted. Thus, Mr. Anderson must show a "reasonable probability" that the impeachment evidence that his trial counsel allegedly ignored would have changed the jury's verdict with respect to Count One. This he cannot do.
Even assuming that trial counsel had successfully impeached Mr. Harkness with respect to what he told government agents during his first interview, the government presented an abundance of inculpatory evidence against Mr. Anderson on the conspiracy charge. In other words, it is simply not reasonable to believe that impeachment of Mr. Harkness of this one point would have undermined the totality of inculpatory evidence against Mr. Anderson on the conspiracy charge. See United States v. Anderson, 189 F.3d 1201, 1206-07 (10th Cir. 1999) (detailing additional evidence against Mr. Anderson on conspiracy charge). Moreover, as the Tenth Circuit noted in connection with Mr. Anderson's direct appeal, the jury "apparently did not find Mr. Harkness to be a credible witness" in any event. See id. at 1206 n. 2. Thus, it is highly unlikely that any additional impeachment of Mr. Harkness would have had any impact on the jury's decision.
Mr. Anderson's final ineffective assistance claim is that his counsel ineffectively represented him during sentencing. To prevail on this claim, Mr. Anderson must establish both that trial counsel's representation at sentencing was deficient, and he was thereby prejudiced. See Strickland, 466 U.S. at 687. Mr. Anderson contends that he would have not received a two-level enhancement for obstruction of justice in connection with his sentencing if trial counsel had called Craig Curtis to the stand as Mr. Anderson had requested. In that regard, the court, in sentencing Mr. Anderson, imposed a two-level increase under section 3C1.1 for obstruction of justice based on the court's conclusion that Mr. Anderson had committed perjury when he contradicted the testimony of Dishire Davey and when he testified that a large amount of cash found in his possession was money that he had stolen from Juan Harkness as opposed to drug proceeds. According to Mr. Anderson, the court would not have concluded that Mr. Anderson had contradicted Ms. Davey's testimony if Mr. Curtis had testified (as Mr. Anderson represents he would have) that he, and not Mr. Anderson, was the passenger in the car that picked up Ms. Davey.
The court's enhancement was also based on a third occasion of perjury, but the Tenth Circuit concluded that third basis was not substantiated by the record. See United States v. Anderson, 189 F.3d 1201, 1214 (10th Cir. 1999). Nonetheless, the Circuit affirmed the two-level enhancement on the grounds that the court would have imposed the same enhancement based on the two findings of perjury. Id.
Even assuming, however, that Mr. Curtis did testify as Mr. Anderson represents he would have, and assuming that the court believed Mr. Curtis and thus, that the court would not have concluded that Mr. Anderson had perjured himself by contradicting the testimony of Ms. Davey, the court nonetheless would have imposed the same enhancement based on the court's conclusion that Mr. Anderson committed perjury when he testified that the cash was money that he had stolen rather than proceeds from the sale of drugs. See Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000) (noting court may consider Strickland's prejudice component without first addressing adequacy of counsel's performance). As the Tenth Circuit noted when it affirmed this court's conclusion that Mr. Anderson's testimony on this point was false, "the testimony was material, as the possession of large amounts of cash would be probative of Mr. Anderson's involvement with the illegal drug trade." United States v. Anderson, 189 F.3d 1201, 1214 (10th Cir. 1999); see also United States v. Sarracino, 340 F.3d 1148, 1172 (10th Cir. 2003) (A section 3C1.1 enhancement predicated upon perjury is appropriate when the sentencing court finds that the defendant has given false testimony on a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.).
Mr. Anderson next asserts that the court would not have increased his base offense level from a level 32 to a level 34 if his trial counsel had properly impeached Juan Harkness. In that regard, the court assigned to Mr. Anderson a base offense level of 34 because it attributed to Mr. Anderson at least 15 kilograms of cocaine based in large part on Juan Harkness's testimony that he provided 10 kilograms of cocaine to Mr. Anderson. As set forth above, however, Mr. Anderson asserts only that trial counsel failed to impeach Juan Harkness's trial testimony that he informed agents during his first interview with them that he sold drugs to Mr. Anderson. Even assuming that trial counsel had been able to establish that Juan Harkness did not tell agents during his first interview that he sold drugs to Mr. Anderson, the court nonetheless would have credited Mr. Harkness's testimony that he sold drugs to Mr. Anderson. As the court explained during Mr. Anderson's sentencing hearing, the court found not only that Mr. Harkness was a credible witness as to his testimony that he sold large quantities of drugs to Mr. Anderson but also that the testimony was supported by Mr. Anderson's phone records. These records showed that Mr. Anderson made 44 calls on his cell phone and his pager to Mr. Harkness between September 1994 through November 1994, the time when Mr. Harkness stopped selling drugs to Mr. Anderson in light of Ms. Davey's arrest. This claim, then, lacks merit.
In his motion, Mr. Anderson also complains that his counsel was constitutionally ineffective during sentencing because he failed to investigate "three (3) point criminal history increase for prior unrelated conviction, and concurrent sentences relating to same alleged acts and conduct resulted in a prejudice and unfair sentencing outcome." Mr. Anderson does not elaborate on these claims, however, and his reply brief is silent as to these claims. Without more specificity as to the nature of these claims, Mr. Anderson cannot show that he is entitled to relief and the court must deny habeas relief to Mr. Anderson. See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995) (To be entitled to an evidentiary hearing, the defendant must allege facts which, if proven, would entitle him or her to relief and the allegations must be specific and particularized, not general or conclusory).
Mr. Anderson's remaining claim in his motion for relief is that the government suborned perjury during the trial. As the government notes in its brief, Mr. Anderson fails to identify in his motion any specific witnesses that he alleges testified falsely and fails to identify any specific testimony that he contends is false. Rather, Mr. Anderson only generally argues that the government knew or should have known that its witnesses were testifying falsely and that the government had in its possession evidence that would have disputed the testimony of its witnesses. Moreover, despite filing an extensive reply brief, Mr. Anderson has failed to even mention in that reply any argument or claim concerning the government's subornation of perjury and, thus, he has apparently abandoned that claim. In any event, the claim easily fails on the merits as Mr. Anderson, by failing to provide any specific allegations concerning what witness allegedly testified falsely as to what facts, has not alleged "facts which, if proven, would entitle him . . . to relief." See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995) (To be entitled to an evidentiary hearing, the defendant must allege facts which, if proven, would entitle him or her to relief and the allegations must be specific and particularized, not general or conclusory). IT IS THEREFORE ORDERED BY THE COURT THAT defendant's motion to vacate, set aside or correct his sentence (doc. 1072) is denied in part and retained under advisement in part. Defendant shall have until December 12, 2003 to submit the affidavits of Craig Curtis and Tacretia Anderson and the government shall have thirty days from the date Mr. Anderson files such affidavit to file any rebuttal affidavits. After receiving such affidavits, the court will make a further determination as to whether Mr. Anderson is entitled to an evidentiary hearing.
Assuming that Mr. Anderson intended to assert that the testimony of Ms. Davey and Mr. Harkness constituted perjury, he has failed to show first that the particular testimony of these witnesses was, in fact, an intentional lie as opposed to simply an incorrect statement. With respect to Ms. Davey, for example, Mr. Anderson has in no way shown that she was lying when she testified that Mr. Anderson was the passenger in the car that picked her up at the airport in Los Angeles. At the most, Mr. Anderson has suggested that Ms. Davey misidentified Mr. Anderson as the passenger. This does not constitute perjury. Second, even assuming that the testimony of these witnesses was perjured, Mr. Anderson has in no way shown that the government had knowledge that the testimony was intentionally false.
IT IS FURTHER ORDERED BY THE COURT THAT defendant's motion for an extension of time to supplement his petition pursuant to 28 U.S.C. § 2255 (doc. 1073) is denied.
IT IS SO ORDERED.