United States v. Edwards ( 2006 )


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  •                                                  United States Court of Appeals
    Fifth Circuit
    F I L E D
    REVISED MARCH 30, 2006
    March 1, 2006
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
    Clerk
    __________________
    04-31210
    __________________
    UNITED STATES OF AMERICA
    Plaintiff - Appellee
    v.
    EDWIN EDWARDS
    Defendant - Appellant
    __________________
    04-31212
    __________________
    UNITED STATES OF AMERICA
    Plaintiff - Appellee
    v.
    ANDREW MARTIN
    Defendant - Appellant
    ___________________
    04-31219
    ___________________
    UNITED STATES OF AMERICA
    Plaintiff - Appellee
    v.
    STEPHEN EDWARDS
    Defendant - Appellant
    Appeals from the United States District Court
    for the Middle District of Louisiana, Baton Rouge
    Before KING, BARKSDALE and PRADO, Circuit Judges.
    KING, Circuit Judge:
    In this consolidated appeal, appellants Edwin Edwards,
    Stephen Edwards, and Andrew Martin challenge the district court’s
    denial of their motions to vacate their sentences pursuant to 28
    U.S.C. § 2255 and the district court’s denial of an evidentiary
    hearing to determine whether the government withheld exculpatory
    evidence during their criminal trial in violation of Brady v.
    Maryland, 
    373 U.S. 83
    (1963).   They also appeal the district
    court’s denial of their motions for leave to amend their § 2255
    motions after the one-year statute of limitations had expired to
    add a constitutional claim in light of United States v. Booker,
    
    543 U.S. 220
    (2005).   For the reasons stated below, we AFFIRM.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    A.   Criminal Proceedings
    Four-term Louisiana Governor Edwin Edwards, his son Stephen
    Edwards, and his executive assistant Andrew Martin (collectively,
    “Appellants”), along with several of their associates, were
    indicted on thirty-four federal counts by superseding indictments
    on August 4, 1999, for their roles in a number of illegal
    activities designed to profit from awarding riverboat gambling
    -2-
    licenses while Edwin Edwards was governor.   The superseding
    indictments alleged that Appellants had conspired in five
    separate “schemes” to extort money from individuals who had
    applied to the Louisiana Riverboat Gaming Commission for a
    limited number of licenses to operate riverboat casinos along
    Louisiana’s Gulf Coast and Lake Charles.   In exchange for cash
    bribes, Appellants promised to use Governor Edwards’s influence
    with the Riverboat Gaming Commission to help applicants obtain
    preliminary approval for the riverboat gambling licenses they
    sought; for those applicants who refused to pay, Appellants
    threatened to make obtaining a license impossible.   Appellants
    then attempted to launder the extorted money to cover up their
    criminal activities.   At their arraignments on August 24, 1999,
    Appellants entered pleas of not guilty.
    On May 9, 2000, after a four-month trial in the United
    States District Court for the Middle District of Louisiana, the
    jury returned its verdict.   Appellants were convicted of, inter
    alia, violating the Racketeer Influenced and Corrupt
    Organizations Act (“RICO”), RICO conspiracy, extortion,
    conspiracy to commit extortion, wire and mail fraud, conspiracy
    to commit wire and mail fraud, and conspiracy to commit money
    laundering.
    On January 8, 2001, Appellants were sentenced under the
    United States Sentencing Guidelines.   Governor Edwards was
    sentenced to 120 months and Stephen Edwards was sentenced to 84
    -3-
    months, and they were fined $250,000 and $60,000, respectively.
    Andrew Martin received 68 months and a $50,000 fine.   A
    forfeiture order in the amount of $1.8 million was entered
    against each appellant.     While all three sentences were within
    the Guidelines, they included enhancements for the amount of
    intended loss, and Governor Edwards’s and Stephen Edwards’s
    sentences also included enhancements for their roles in the
    offenses.
    Appellants appealed their convictions and sentences to this
    court, which affirmed the district court’s judgment on August 23,
    2002.    United States v. Edwards, 
    303 F.3d 606
    , 647 (5th Cir.
    2002).    This court subsequently denied Appellants’ petition for
    rehearing en banc.    United States v. Edwards, 51 F. App’x 485
    (5th Cir. 2002).    On February 24, 2003, the Supreme Court denied
    Governor and Stephen Edwards’s petition for writ of certiorari.
    Edwards v. United States, 
    537 U.S. 1192
    (2003).    The Court denied
    Andrew Martin’s petition for writ of certiorari on March 3, 2003.
    Martin v. United States, 
    537 U.S. 1240
    (2003).
    B.   Post-Conviction Proceedings
    1.     Section 2255 Proceedings
    On February 18, 2004, Appellants timely filed in the United
    States District Court for the Middle District of Louisiana cross-
    incorporated post-conviction motions to vacate their sentences
    under 28 U.S.C. § 2255, alleging six separate grounds for relief
    -4-
    and requesting an evidentiary hearing.    Two of these grounds,
    which are now before this court on appeal, alleged that during
    Appellants’ trial the government withheld impeachment evidence
    relating to two of its key witnesses, Robert Guidry and John
    Brotherton, in violation of Appellants’ due process rights under
    Brady, 
    373 U.S. 83
    .
    a)     Robert Guidry’s Plea Agreement
    In their § 2255 motions, Appellants asserted that the
    government violated their due process rights under Brady when it
    concealed information regarding the plea agreement of Louisiana
    businessman Robert Guidry, a government witness who had testified
    against Appellants pursuant to a grant of immunity.    Appellants
    further maintained that Guidry gave false testimony concerning
    the scope of his plea agreement and that the government failed to
    correct it in violation of Napue v. Illinois, 
    360 U.S. 264
    , 270
    (1959).
    Appellants asserted that at their trial, the government
    relied heavily on Guidry’s testimony to convict Appellants on
    counts related to the so-called “Treasure Chest Scheme.”    Guidry,
    the owner of the Treasure Chest Riverboat Casino, testified that
    in 1994 he had agreed to pay Appellants $100,000 per month in
    exchange for a license hearing before the Riverboat Gaming
    Commission.    Guidry received a license and, after Governor
    Edwards left office in 1996, began making the monthly cash
    -5-
    payments of $100,000.    Guidry testified that between February
    1996 and April 1997 he paid a total of $1.4-$1.5 million to
    Appellants.
    Guidry gave this testimony in exchange for immunity from
    further prosecution pursuant to a written plea agreement with the
    federal government.    Per the agreement, at his October 16, 1998,
    arraignment, Guidry pleaded guilty to one count of conspiracy to
    commit extortion related to the “Treasure Chest Scheme” in the
    United States District Court for the Middle District of
    Louisiana.    The agreement also required that he forfeit $3
    million and pay $250,000 in restitution and $250,000 in fines,
    capping his total financial liability to the federal government
    at $3.5 million.1   In addition, Guidry received state immunity in
    an October 15, 1998, letter to Eddie Jordan, the United States
    Attorney for the Eastern District of Louisiana, signed by East
    Baton Rouge Parish District Attorney Doug Moreau.      In this
    letter, Moreau promised that he would “defer to federal
    prosecution in the matter [and] grant [Guidry] immunity for
    crimes he may have committed concerning the Louisiana Riverboat
    Gaming Industry and specifically the Treasure Chest riverboat
    casino.”   Def. § 2255 Exh. tab 2.     Guidry’s plea agreement
    1
    Under the terms of the plea agreement, Guidry was to
    pay the $250,000 in restitution to be distributed by the court at
    sentencing to parties who could show that they suffered damages
    as a result of Guidry’s conduct. See Def. § 2255 Exh. tab 1 at
    2.
    -6-
    specified that “the statements set forth above represent the
    entire agreement with the government, any prior oral discussions
    or written letters do not affect this agreement.”   Def. § 2255
    Exh. tab 1 at 4.   The government produced Guidry’s written plea
    agreement and the Moreau letter to Appellants prior to the
    beginning of Appellants’ criminal trial.
    On October 7, 1999, the Louisiana Attorney General, on
    behalf of the state of Louisiana, filed a civil suit in state
    court against Guidry.   The state sought damages arising from
    Guidry’s illegal dealings with Appellants, including all of the
    profits resulting from Guidry’s breach of fiduciary duty and the
    value of his gaming license.   Shortly before the beginning of
    Appellants’ criminal trial, the district court stayed the state
    action against Guidry pending the outcome of Appellants’ trial.
    During Appellants’ trial, Guidry testified that, although his
    financial liability to the federal government was capped at $3.5
    million, his overall financial exposure was possibly much greater
    because he had “two or three lawsuits that’s [sic] pending
    against all this 
    money.” 120 Rawle at 214
    .   After Appellants’ trial
    and convictions, Guidry was sentenced in federal court consistent
    with his plea agreement on January 17, 2001.2
    2
    At the sentencing hearing, the state of Louisiana
    sought a restitution award out of the $250,000 that Guidry had
    paid to the court pursuant to his plea agreement, arguing a
    breach of fiduciary duty theory similar to the theory of recovery
    articulated in Louisiana’s state court suit pending against
    Guidry at the time.
    -7-
    Soon thereafter, the state of Louisiana proceeded with its
    civil suit against Guidry.   In support of his motion for a
    preliminary injunction, Guidry’s defense attorneys argued that
    the immunity provisions set forth in the Moreau letter should be
    construed under Louisiana law to include immunity from state
    civil suit for money damages as well as from state criminal
    prosecution.   At a June 26, 2003, hearing on the motion, Guidry’s
    attorneys attempted to elicit testimony from the federal and
    state prosecutors involved in the plea agreement to support this
    civil immunity theory.   The state court judge denied the
    preliminary injunction on the ground that, given the testimony
    from the hearing, “there was simply no meeting of the minds”
    regarding an agreement to extend civil immunity to Guidry.    Def.
    § 2255 Exh. tab 16 at 5.
    Despite the state court’s finding, Appellants, citing newly
    discovered evidence of a Brady violation, built on Guidry’s civil
    immunity theory a year later during their § 2255 proceedings.
    They argued that Guidry’s plea agreement went beyond the contents
    of the written agreement and the Moreau letter because Guidry had
    also entered into an unwritten, undisclosed deal with federal
    prosecutors and the state of Louisiana immunizing Guidry from
    financial liability to the state arising from crimes he may have
    committed in connection with the Treasure Chest Casino.
    Appellants further suggested that a federal judge approved this
    separate agreement at Guidry’s 1998 arraignment in a secret, off-
    -8-
    the-record chambers conference with Guidry, his lawyers, and the
    prosecutors.
    b)   John Brotherton’s Book Deal
    In their § 2255 motions, Governor and Stephen Edwards (“the
    Edwardses”)3 also contended that the government violated their
    due process rights under Brady when it failed to disclose that,
    during the trial, cooperating witness John Brotherton had been
    writing a book about his role in the Edwards case.   The Edwardses
    asserted that Brotherton, a Vice President for the Players Casino
    Company who testified pursuant to a grant of immunity, was a
    crucial witness in the government’s “Players Scheme” case because
    he and Richard Shetler, an Edwards family friend and paid
    consultant for Players, were the only two witnesses to testify to
    extortion connected with the Players Casino.
    The Edwardses argued that the government’s failure to
    disclose that Brotherton was writing a book deprived them of
    impeachment evidence concerning Brotherton’s purported financial
    stake in the outcome of the trial.   Moreover, the Edwardses
    contended that the contents of the book revealed further
    exculpatory evidence that the government had failed to disclose
    in violation of Brady, including the existence of tape recordings
    3
    Appellant Andrew Martin was not named in the “Players
    Scheme” counts of the indictment and thus was not found guilty of
    the related racketeering counts that Brotherton’s testimony
    addressed.
    -9-
    obtained from a wiretap of an undercover informant.
    c)   The District Court’s Ruling
    The district court denied Appellants’ § 2255 motions and
    their request for an evidentiary hearing on November 3, 2004.
    The court found that there was no evidence that the government
    had concealed the extent of Guidry’s financial immunity in
    violation of Appellants’ due process rights because (1) Guidry
    testified extensively on cross-examination about the terms of his
    plea agreement, including the limitations on his federal
    forfeiture, his understanding of his immunity deal with the state
    of Louisiana, and his plea agreement’s relationship to the
    pending collateral civil suits; (2) Appellants were able to
    impeach Guidry effectively on the financial liability limitation
    contained in his written plea agreement, and even if the
    government had disclosed its purported belief that the state
    lawsuit against Guidry was barred because of his financial
    immunity deal, such information “would have been at best,
    cumulative,” and at worst, “not material”; and (3) Appellants’
    “argument that the plea agreement contained an undisclosed (and
    unwritten) clause which barred the State from seeking monetary
    damages from Guidry is speculative and unsupported” by the
    evidence.    Ruling on Petitioner’s Motion to Vacate, Set Aside, or
    Correct Sentence, No. 98-165-C, at 7-9 (Nov. 3, 2004)
    [hereinafter “Dist. Ct. § 2255 Ruling”].   Because the court found
    -10-
    no evidence of an undisclosed financial immunity deal, it also
    rejected Appellants’ contention that Guidry gave false testimony
    at trial that the government failed to correct.
    Likewise, the district court rejected Appellants’ assertion
    that the government’s failure to disclose John Brotherton’s book
    deal violated Appellants’ due process rights under Brady.
    Because “Brady requires that materiality be determined in light
    of all evidence at trial,” the court examined the totality of the
    evidence supporting the convictions for the “Players Scheme.”
    
    Id. at 28-29.
       The court found that ample evidence besides
    Brotherton’s testimony supported the convictions, and “[i]t is
    rank speculation to conclude that, compared with this
    incriminating evidence, any marginally more impeaching evidence
    concerning Brotherton could have created in the jurors’ minds
    reasonable doubt as to the [Appellants’] guilt.”     
    Id. at 29.
    Appellants filed notices of appeal of the district court’s
    ruling and motions for a certificate of appealability (“COA”) on
    November 30, 2004.
    2.      Appellants’ Motions to Amend Their § 2255 Motions
    Appellants did not challenge the constitutionality of their
    sentences in the § 2255 motions that they filed on February 18,
    2004.     On June 24, 2004, the United States Supreme Court handed
    down Blakely v. Washington, 
    542 U.S. 296
    (2004), striking down a
    state sentencing guideline scheme that allowed sentence
    -11-
    enhancements based on facts found by a judge and not a jury.
    Anticipating that the Supreme Court might extend Blakely to the
    federal Sentencing Guidelines, Appellants filed motions for leave
    to amend their § 2255 motions on July 1, 2004, outside of the
    § 2255, ¶ 6, one-year limitation period.    In a ruling dated
    September 4, 2004, the district court denied Appellants’ motions
    based solely on United States v. Pineiro, 
    377 F.3d 464
    (5th Cir.
    2004), vacated, 
    543 U.S. 1101
    (2005), which held that Blakely did
    not invalidate the federal Sentencing Guidelines.    Appellants
    filed notices of appeal and motions for a COA on November 30,
    2004.     Shortly thereafter, on January 12, 2005, the Supreme Court
    handed down Booker, 
    543 U.S. 220
    , which applied Blakely to hold
    the mandatory application of the federal Sentencing Guidelines
    unconstitutional.
    3.      Certificate of Appealability
    On December 13, 2004, the district court granted each
    Appellant a COA pursuant to 28 U.S.C. § 2253(c)(1)(B), finding
    that Appellants had demonstrated a substantial showing of the
    denial of a constitutional right on the following issues:
    1. Whether the [Appellants’] due process rights were
    violated by the government’s failure to disclose a
    promise to cooperating witness Robert Guidry that he
    would not be liable in money damages to the State of
    Louisiana.
    2. Whether the [Appellants’] due process rights were
    violated by the government’s failure to correct Robert
    Guidry’s trial testimony that he faced financial exposure
    from the lawsuits pending against him and from the denial
    -12-
    of an evidentiary hearing on this issue.
    3. Whether the [Appellants’] due process rights were
    violated by the government’s failure to disclose
    exculpatory, impeachment material relating to cooperating
    witness John Brotherton and from the denial of an
    evidentiary hearing on this issue.
    4. Whether the [Appellants] should be permitted to raise
    a constitutional claim pursuant to Blakely v. Washington.
    Appellants now request that this court reverse the district
    court’s judgment and vacate their convictions, or, in the
    alternative, remand for an evidentiary hearing.
    II. DISCUSSION
    A.   Standard of Review
    Under the Antiterrorism and Effective Death Penalty Act of
    1996 (“AEDPA”), our review is limited to the issues enumerated in
    the COA.4    28 U.S.C. § 2253(c)(1).    In reviewing a district
    court’s denial of a motion to vacate sentence under § 2255, we
    review questions of fact for clear error and questions of law de
    novo.     United States v. Chavez, 
    193 F.3d 375
    , 378 (5th Cir.
    1999).     Claims that the government violated Brady v. Maryland are
    mixed questions of law and fact that we review de novo.      United
    States v. Hughes, 
    230 F.3d 815
    , 819 (5th Cir. 2000); Felder v.
    Johnson, 
    180 F.3d 206
    , 211 (5th Cir. 1999).      We review for abuse
    of discretion a district court’s denial of an evidentiary
    4
    AEDPA applies because Appellants filed their § 2255
    motions on February 18, 2004, well after AEDPA’s effective date
    of April 24, 1996. See United States v. Williamson, 
    183 F.3d 458
    , 461 n.2 (5th Cir. 1999).
    -13-
    hearing, which we will grant only “[i]f the [Appellants]
    produce[] independent indicia of the likely merit of [their]
    allegations.”     United States v. Cervantes, 
    132 F.3d 1106
    , 1110
    (5th Cir. 1998); see also United States v. Auten, 
    632 F.2d 478
    ,
    480 (5th Cir. 1980) (noting that mere conclusory allegations are
    not sufficient to support a request for an evidentiary hearing).
    A district court’s denial of a motion to amend a § 2255 motion is
    also subject to review for abuse of discretion.     United States v.
    Saenz, 
    282 F.3d 354
    , 356 (5th Cir. 2002).
    B.   Analysis
    1.   The Alleged Brady Violations
    Under Brady, “the suppression by the prosecution of evidence
    favorable to an accused upon request violates due process where
    the evidence is material either to guilt or to punishment,
    irrespective of the good faith or bad faith of the 
    prosecution.” 373 U.S. at 87
    .    The Supreme Court subsequently extended this
    principle to impeachment evidence, holding that “[w]hen the
    ‘reliability of a given witness may well be determinative of
    guilt or innocence,’ nondisclosure of evidence affecting
    credibility falls within this general rule.”     Giglio v. United
    States, 
    405 U.S. 150
    , 154 (1972) (quoting 
    Napue, 360 U.S. at 269
    ); see also United States v. Bagley, 
    473 U.S. 667
    , 676-77
    (1985) (rejecting any distinction between exculpatory and
    impeachment evidence for Brady purposes).     To establish a Brady
    -14-
    violation, Appellants must prove that (1) the prosecution
    suppressed evidence; (2) the evidence was favorable to the
    defendant because it was either exculpatory or impeaching; and
    (3) the evidence was material.    United States v. Sipe, 
    388 F.3d 471
    , 477 (5th Cir. 2004); see also Strickler v. Greene, 
    527 U.S. 263
    , 281-82 (1999); Kyles v. Whitley, 
    514 U.S. 419
    , 433-38
    (1995).
    a)   Robert Guidry’s Plea Agreement
    Appellants allege that the government violated Brady with
    regard to cooperating witness Robert Guidry because (1) in
    addition to a grant of immunity from state prosecution, Guidry’s
    plea deal included a secret, unwritten promise of immunity from
    any future civil suit for damages that the state of Louisiana
    might bring against him; (2) the deal was confected without
    Appellants’ knowledge by federal prosecutors, the Baton Rouge
    district attorney’s office, and Guidry’s defense lawyers and then
    secretly approved by a federal judge; and (3) the government
    failed to disclose the deal to Appellants prior to trial,
    depriving them of valuable impeachment evidence.
    Our review of the record reveals no factual support for this
    improbable scenario; instead, the record affirmatively
    contradicts Appellants’ arguments.      To support their theory,
    Appellants rely primarily on the transcript of a 2003 state court
    hearing on Guidry’s request for a preliminary injunction of the
    -15-
    state lawsuit filed against him.   Appellants maintain that the
    testimony that Guidry’s attorneys elicited from federal and state
    prosecutors who were parties to the Guidry plea negotiations
    indicates that there was indeed a hidden promise limiting
    Guidry’s state financial liability.   To the contrary, the record
    reflects that even Guidry’s attorneys--who Appellants claim
    negotiated the alleged deal with the state and federal
    prosecutors--never argued or attempted to insinuate during
    questioning that Guidry had agreed to a secret deal that included
    civil immunity.   Rather, they merely argued that the state
    immunity provisions set forth in the Moreau letter should be
    construed under Louisiana law to include immunity from the state
    civil suit.5   The theory alleging an unwritten side deal was
    5
    Guidry’s attorneys did not argue the existence of a
    hidden deal in their January 31, 2003, Memorandum in Support of
    Request for Preliminary Injunction:
    Unquestionably, the State could not prosecute Guidry
    criminally under the immunity granted to him.         The
    question here is whether the immunity agreement bars the
    state from prosecuting this so-called civil lawsuit on
    the basis of his immunized information and testimony. We
    submit firstly that the State is barred from using the
    immunized information and testimony under Louisiana
    immunity law, and alternatively, it is barred because the
    lawsuit in reality is an attempt to obtain restitution,
    a criminal penalty, under the guise of a civil claim.
    Allowing this suit to proceed on the basis of the
    immunized information and testimony would result in an
    erroneous interpretation of Louisiana’s immunity law and
    an improper application of federal and state principles
    of criminal restitution.
    Def. § 2255 Exh. tab 11 at 4.
    Likewise, Guidry’s attorneys did not assert that their
    client had agreed to such a deal in an affidavit submitted in
    support of their motion for a preliminary injunction. The most
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    articulated for the very first time in Appellants’ § 2255
    motions, six years after Guidry entered into his written plea
    agreement and more than one year after Guidry’s state court
    preliminary injunction hearing.
    Moreover, at least two of the attorneys who allegedly
    concocted the secret plea agreement--East Baton Rouge Parish
    District Attorney Doug Moreau and Assistant United States
    Attorney Fred Harper--testified under oath at the hearing that no
    mutual understanding or provision limiting Guidry’s state
    financial liability ever existed.     Indeed, at the time that
    Moreau extended state immunity “for crimes [Guidry] may have
    committed” in return for Guidry’s cooperation with federal
    authorities, the state civil lawsuit against Guidry had not been
    filed, and it is clear from the record that none of the actors
    involved even contemplated that the state would pursue such a
    lawsuit.   According to Moreau, “I had never even thought about
    [civil immunity] before this lawsuit. . . . I did not contemplate
    the use immunity or transactional immunity in regard to civil
    proceedings.   That . . . never crossed my mind. . . . I didn’t
    even know of such a concept as civil immunity.”     Def. § 2255 Exh.
    they alleged was that Guidry “still refused to enter a plea and
    cooperate with the government unless he could be assured that the
    State of Louisiana would defer its interest in the case to the
    federal government and would agree to limit its financial
    recovery to the amount specified in the federal proceeding.”
    Even this statement stops short of alleging the actual existence
    of an agreement limiting Guidry’s state financial exposure. Def.
    § 2255 Exh. tab 12 at 2.
    -17-
    tab 15 at 42-44.   Likewise, Harper testified that side agreements
    outside the scope of the written plea agreement would have been
    prohibited and that no one involved had anticipated that the
    state of Louisiana would subsequently bring a civil suit against
    Guidry:
    [N]ever, in my experience, have I ever had a situation
    where unbeknownst to me at the time this plea agreement
    was entered into, and I believe at the time Mr. Guidry
    pled guilty, . . . the state of Louisiana, or anybody
    else for that matter, sued a cooperating defendant in a
    criminal case. . . . Never, in any case in the 28 years
    I’ve been doing this, have I ever seen the state sue a
    cooperating defendant civilly. . . . [T]he thought of a
    civil action brought by the state of Louisiana against
    this cooperating defendant never entered anybody’s mind.
    
    Id. at 67-68.6
    Finally, Appellants contend that a federal judge colluded
    with the federal prosecutors and Guidry’s attorneys to approve
    the alleged civil immunity agreement at Guidry’s arraignment in
    an in camera, “secret proceeding.”    Appellants offer no support
    for this serious allegation other than pointing to a short, off-
    the-record chambers conference between the judge and the
    attorneys that happened during Guidry’s arraignment and
    speculating that something illicit occurred during the recess.
    6
    Resting its decision on this testimony, the state court
    ultimately denied Guidry’s motion for a preliminary injunction,
    stating, “[c]onsidering the testimony of the witnesses at the
    hearing, it is clear that there was simply no meeting of the
    minds regarding any civil liability of Mr. Guidry. . . . The
    court reads [the Moreau letter’s] granting of immunity to apply
    to criminal culpability only and not to any civil matters.” Def.
    § 2255 Exh. tab 16 at 5.
    -18-
    This contention is wholly without merit, particularly because
    this same judge later rejected the argument that the federal plea
    agreement necessarily limited Guidry’s financial liability to the
    state during the restitution portion of Guidry’s sentencing.      See
    Def. § 2255 Exh. tab 10 at 18-19.
    Our review of the record leaves us with the firm conviction
    that there was no clandestine, collateral plea agreement
    protecting Guidry from state financial liability.   Appellants’
    contentions are speculative and find no support in Guidry’s plea
    agreement, the Moreau immunity letter, the transcripts of
    proceedings from the state’s lawsuit against Guidry, or the
    record on appeal.7   Because “[t]he prosecution has no duty to
    turn over to the defense evidence that does not exist,” we reject
    Appellants’ Brady claims with respect to Robert Guidry.8    Brogdon
    v. Blackburn, 
    790 F.2d 1164
    , 1168 (5th Cir. 1986) (per curiam);
    7
    For the same reasons, the district court did not abuse
    its discretion when it denied Appellants’ request for an
    evidentiary hearing. Appellants have failed to provide
    “independent indicia” of the likely merits of their allegations
    and instead rely on speculation based on a misreading of the
    record, which is insufficient to warrant an evidentiary hearing.
    See 
    Cervantes, 132 F.3d at 1110
    ; 
    Auten, 632 F.2d at 480
    (“[C]onclusory assertions do not support the request for an
    evidentiary hearing.”).
    8
    Accordingly, we need not address the materiality vel
    non of the allegedly suppressed evidence. Likewise, because the
    record reveals neither that a civil immunity agreement concerning
    Guidry existed, nor that the government was aware that Guidry
    might have believed that such a deal existed, we need not address
    Appellants’ related claim that the government violated their due
    process rights in violation of Napue, 
    360 U.S. 264
    , by failing to
    correct Guidry’s allegedly false testimony.
    -19-
    see also United States v. Rivera Rangel, 
    396 F.3d 476
    , 486 n.11
    (1st Cir. 2005) (reversing the district court’s grant of a new
    trial based on an alleged Brady violation resulting from the
    suppression of a cooperating witness’s plea agreement, noting
    that “the district court’s finding that [the witness] entered
    into a plea agreement was entirely at odds with the only
    evidence--which was in the form of sworn statements--that had
    been offered on the subject, and as a result, it was
    unjustified”); Todd v. Schomig, 
    283 F.3d 842
    , 849 (7th Cir. 2002)
    (addressing a prisoner’s claim that the government suppressed the
    existence of a cooperating witness’s plea agreement and holding,
    “Todd cannot prove an agreement existed. . . . Without an
    agreement, no evidence was suppressed, and the state’s conduct,
    not disclosing something it did not have, cannot be considered a
    Brady violation”).
    b)   John Brotherton’s Book Deal
    The Edwardses also contend that the government violated
    their Brady rights by failing to disclose: (1) that cooperating
    witness John Brotherton was writing a book during their trial;
    (2) Brotherton’s allegation in the book that the government
    secretly recorded a meeting between Brotherton and government
    informant Patrick Graham, which the government subsequently
    failed to disclose to the Edwardses; and (3) a fabricated
    memorandum that Brotherton claims he prepared at one point to
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    secure a job with a tribal casino, which he also discusses in his
    book.
    Even if the government had known that Brotherton was writing
    a book and had failed to provide the Edwardses with this
    information--and it is unclear from the record whether this was
    even the case9--the Edwardses’ claim fails because the evidence
    was not material for Brady purposes.   “‘[E]vidence is material
    only if there is a reasonable probability that, had the evidence
    been disclosed to the defense, the result of the proceeding would
    have been different.’” Rector v. Johnson, 
    120 F.3d 551
    , 562 (5th
    Cir. 1997) (quoting 
    Bagley, 473 U.S. at 682
    (1985)).
    Specifically, we must determine whether the allegedly suppressed
    evidence, considered collectively and in light of all of the
    evidence at trial, could reasonably be taken to put the entire
    case in a different light so as to “‘undermine[] confidence in
    the outcome of the trial.’”   
    Kyles, 514 U.S. at 434
    (quoting
    9
    The Edwardses’ assertions that the government even knew
    of Brotherton’s book deal are largely speculative. The Edwardses
    cite the book’s preface, in which Brotherton congratulates the
    government on its successful prosecution of Governor Edwards, for
    the proposition that “the prosecutors were apparently aware of”
    both the existence and the contents of Brotherton’s book.
    Edwards Br. at 46 (emphasis added). Moreover, to support their
    claim, the Edwardses merely assert that “the government has not
    denied” knowledge of this evidence. 
    Id. at 50.
    This argument
    ignores that the Edwardses, as the parties alleging a Brady
    violation, have the burden of establishing all three prongs of
    the Brady test. See, e.g., 
    Sipe, 388 F.3d at 477
    (“To establish
    a Brady violation, a defendant must make three showings . . . .”)
    (emphasis added).
    -21-
    
    Bagley, 473 U.S. at 678
    ); see also Duncan v. Cain, 
    278 F.3d 537
    ,
    539 (5th Cir. 2002).
    The Edwardses speculate that the fact that Brotherton was
    writing a book and the book’s contents would have been
    sufficiently impeaching to undermine confidence in the jury
    verdict; however, taken in context, this evidence would have had
    at best only a marginal impact on the government’s case against
    the Edwardses.   Brotherton was not the only witness to testify
    against the Edwardses regarding the “Players Scheme,” nor was he
    the most important.    The trial record reflects that Richard
    Shetler, another Players employee and long-time Edwards family
    friend, provided extensive, damning testimony about the
    Edwardses’ dealings with the casino.    The government further
    bolstered this testimonial evidence with copious exhibit evidence
    and inculpatory taped conversations.
    Given the amount of incriminating evidence other than
    Brotherton’s testimony that the government presented, the
    allegedly suppressed impeachment evidence is simply too
    insignificant to undermine confidence in the jury’s verdict.      See
    Kopcynski v. Scott, 
    64 F.3d 223
    , 226-27 (5th Cir. 1995)
    (rejecting a habeas petitioner’s Brady claim where the suppressed
    impeachment evidence was immaterial in light of the other,
    corroborated testimony and physical evidence supporting
    petitioner’s conviction); see also Pippin v. Dretke, 
    434 F.3d 782
    , 789 n.7 (5th Cir. 2005) (“A claim that is largely
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    speculative with respect to the effect of the allegedly
    exculpatory evidence on the jury’s ultimate determination of
    guilt or innocence cannot support a Brady violation.”).     We thus
    reject the Edwardses’ Brady claim with respect to John
    Brotherton.10
    2.   Appellants’ Booker Claims
    Finally, Appellants argue that the district court erred in
    denying their motions for leave to amend their § 2255 motions in
    light of Booker, 
    543 U.S. 220
    , and Blakely, 
    542 U.S. 296
    .
    Although they acknowledge that they did not challenge the
    constitutionality of their sentences on direct appeal or in their
    initial § 2255 motions, Appellants argue that, in the wake of
    10
    Although, in the alternative, the Edwardses urge us to
    grant an evidentiary hearing to explore their theory further, we
    decline to do so. Due to the speculative and conclusory nature
    of the Edwardses’ allegations with respect to both the
    suppression and materiality Brady prongs, such a hearing would
    serve as nothing more than a fishing expedition. See 
    Cervantes, 132 F.3d at 1110
    (noting that an evidentiary hearing is warranted
    only “[i]f the [Appellants] produce[] independent indicia of the
    likely merit of [their] allegations”); 
    Auten, 632 F.2d at 480
    (denying an evidentiary hearing because the conclusory
    allegations set forth were not sufficient to support a request
    for an evidentiary hearing). We have also denied evidentiary
    hearings to explore similarly unsupported claims in state habeas
    proceedings under § 2254, applying the same standard. See Hughes
    v. Johnson, 
    191 F.3d 607
    , 629 (5th Cir. 1999) (denying an
    evidentiary hearing to investigate a “purely speculative” Brady
    claim); Johnson v. Scott, 
    68 F.3d 106
    , 112 (5th Cir. 1995) (“The
    [habeas] petitioner must set forth specific allegations of fact,
    not mere conclusory allegations.”); Ellis v. Lynaugh, 
    873 F.2d 830
    , 840 (5th Cir. 1989) (“The court need not blindly accept
    speculative and inconcrete claims as the basis upon which to
    order a hearing.”) (internal quotation marks and citation
    omitted).
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    Booker and Blakely, they should now be allowed to amend their
    § 2255 motions to add a collateral constitutional challenge to
    their sentences.
    This argument is foreclosed before this court by United
    States v. Gentry, 
    432 F.3d 600
    , 605 (5th Cir. 2005), and In re
    Elwood, 
    408 F.3d 211
    , 212-13 (5th Cir. 2005) (per curiam), both
    of which hold that the Blakely/Booker line of cases does not
    apply retroactively to cases on collateral review.   Appellants
    correctly conceded in oral argument that this precedent
    forecloses relief before this court.   They raise this issue only
    to preserve it for possible Supreme Court review, and we decline
    to consider it further.
    III. CONCLUSION
    For the foregoing reasons, we AFFIRM the judgment of the
    district court.
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