United States v. Gary C. Haney ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-1714
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Gary Charles Haney, *
* [UNPUBLISHED]
Appellant. *
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Submitted: August 2, 2000
Filed: August 8, 2000
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Before BEAM, FAGG, and LOKEN, Circuit Judges.
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PER CURIAM.
A jury found Gary Charles Haney guilty of conspiracies to distribute cocaine and
marijuana, and this court affirmed his conviction on direct appeal. United States v.
Frayer, 9 F.3d 1367 (8th Cir. 1993), cert. denied, 513 U.S. 818 (1994). In this
28 U.S.C. § 2255 proceeding, Haney argued, in relevant part, the government presented
false testimony at trial in violation of his right to due process, new evidence establishes
his innocence, and there exists an unconstitutional disparity among the sentences
imposed on him and upon two, more culpable co-defendants who entered guilty pleas.
After responsive pleadings, the district court1 denied relief without an evidentiary
hearing, and we affirm.
First, it appears Haney could have, but did not, present his claim on direct appeal
that the government presented false testimony. See Ramey v. United States, 8 F.3d
1313, 1314 (8th Cir. 1993) (per curiam) (§ 2255 relief is not available to correct errors
which could have been raised on direct appeal, absent showing of cause and prejudice
or actual innocence/miscarriage of justice). Nevertheless, we conclude Haney has not
established a due process violation, which requires a showing that the government
knowingly used perjured testimony, plus a reasonable likelihood that it could have
affected the jury’s verdict. See United States v. Perkins, 94 F.3d 429, 432 (8th Cir.
1996), cert. denied, 519 U.S. 1136 (1997).
In addition, we agree with the district court that Haney did not satisfy his burden
to establish a gateway through which otherwise procedurally defaulted claims can be
reached. See Amrine v. Bowersox, 128 F.3d 1222, 1226-27 (8th Cir. 1997) (en banc)
(petitioner can obtain review of procedurally defaulted claims if he produces reliable
new evidence not available at trial which demonstrates that it is more likely than not
that with new evidence no reasonable juror would have convicted him), cert. denied,
523 U.S. 1123 (1998). Finally, assuming without deciding the sentencing-disparity
claim is not procedurally defaulted, Haney has not shown he is entitled to relief. See
United States v. Reeves, 83 F.3d 203, 207 (8th Cir. 1996); United States v. Granados,
962 F.2d 767, 774 (8th Cir. 1992); United States v. Jackson, 959 F.2d 81 (8th Cir.),
cert. denied, 506 U.S. 852 (1992); Castaldi v. United States, 783 F.2d 119, 125 (8th
Cir.), cert. denied, 476 U.S. 1172 (1986).
The judgment of the district court is affirmed.
1
The Honorable George Howard, Jr., United States District Judge for the Eastern
District of Arkansas.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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