United States v. Gregory Boyd ( 2022 )

FILED
NOT FOR PUBLICATION
APR 1 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-35209
Plaintiff-Appellee, D.C. Nos. 1:17-cv-00033-SPW
1:06-cr-00028-SPW-1
v.
GREGORY R. BOYD, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted February 7, 2022
Seattle, Washington
Before: BYBEE and CHRISTEN, Circuit Judges, and SELNA,** District Judge.
Gregory Boyd appeals the district court’s order denying his second-in-time
motion filed pursuant to 28 U.S.C. § 2255. We have jurisdiction pursuant to 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James V. Selna, Senior United States District Judge
for the Central District of California, sitting by designation.
U.S.C. §§ 1291 and 2255(d), and we affirm. Because the parties are familiar with
the facts, we cite only those facts necessary to decide this appeal.
1. Boyd appeals the dismissal of his second-in-time § 2255 motion that
raised claims based on Napue v. Illinois, 360 U.S. 264 (1959), Brady v. Maryland,
373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). On appeal,
Boyd does not argue that the government violated Napue. We therefore limit our
analysis to Boyd’s Brady and Giglio claims.
To prevail on a Brady or Giglio claim, a defendant must establish: (1) the
information at issue is favorable to him; (2) the government failed to disclose the
information to him, either willfully or inadvertently; and (3) resulting prejudice.
See United States v. Wilkes, 662 F.3d 524, 535 (9th Cir. 2011). Prejudice results
when “there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” United States v.
Kohring, 637 F.3d 895, 902 (9th Cir. 2011) (quoting United States v. Bagley, 473
U.S. 667, 682 (1985)). “A reasonable probability is one that is sufficient to
undermine confidence in the outcome of the trial.” United States v. Olsen, 704
F.3d 1172, 1183 (9th Cir. 2013) (quoting Maxwell v. Roe, 628 F.3d 486, 509 (9th
Cir. 2010)). Boyd argues that a prosecutor in his underlying case withheld
exculpatory or impeachment evidence related to three of the government’s
2
cooperating witnesses and one other individual who did not testify at his trial.
Boyd fails to establish that if the government had produced this evidence to him,
there is a reasonable probability the result of his trial would have been different.
Boyd’s counsel acknowledged during oral argument that Boyd’s defense
depended on convincing the jury that there was doubt about whether he knew what
was in the trunk of the car he was driving when officers stopped him. Boyd
testified that he did not know what was in the trunk, but the prosecution was able
to significantly undermine his credibility by showing that other evidence
contradicted several of his statements. For example, Boyd testified that he had
never been accused of possessing a firearm, but the prosecution established that he
had been charged with possession of a firearm in 2002. Boyd also testified that he
had not seen the car he bought for Charles Taylor between June 30, 2005 (the day
he bought it) and July 25, 2005 (the day he was stopped while driving it), but the
prosecution established that he received a traffic citation while driving the car on
July 2, 2005. Finally, Boyd initially testified that he had only been to Montana
once in 2005, but Boyd later acknowledged that he had actually been to Montana
three times in 2005. Boyd did not establish that the withheld evidence would have
significantly influenced the persuasiveness of the three cooperating witnesses’
testimony, and Boyd’s own testimony was severely undermined by the
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prosecution. Accordingly, Boyd failed to meet his burden of showing resulting
prejudice, as required by Brady and Giglio. See Wilkes, 662 F.3d at 535. The
district court did not err by denying Boyd’s second-in-time § 2255 motion. See
United States v. Lopez, 577 F.3d 1053, 1066 (9th Cir. 2009) (applying § 2255(h)(1)
to second-in-time non-meritorious Brady claim).
2. Boyd argues that the district court abused its discretion by precluding
him from engaging in discovery related to his second-in-time § 2255 motion. In
§ 2255 proceedings, a district court “may, for good cause, authorize a party to
conduct discovery.” Rule 6(a), Rules Governing Section 2255 Cases. “Good
cause” for discovery exists “where specific allegations before the court
show reason to believe that the petitioner may, if the facts are fully developed, be
able to demonstrate that he is . . . entitled to relief.” Bracy v. Gramley, 520 U.S.
899, 908–09 (1997) (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). Boyd
failed to establish there was reason to believe that discovery related to his second-
in-time § 2255 motion would demonstrate he is entitled to relief. Thus, the district
court did not abuse its discretion.
AFFIRMED.1
1
The government’s motion to supplement the record or, in the
alternative, for judicial notice (Dkt. No. 20) is DENIED.
4