KRISTI K. DuBOSE, District Judge.
This action is before the Court on defendant Daniel Stuart Addison's motion for new trial, memorandum in support and exhibits to the memorandum (docs. 144, 145). Upon consideration and for the reasons set forth herein, the motion is
In 2007, the Conecuh County Sheriff's Department was investigating the burglary of John Ralls' residence in September 2007 (doc. 145, p. 96, Ralls' theft report, Exhibit 1-7). As part of the investigation of that burglary, Justin Baker gave a statement on December 6, 2007, that he, Daniel Addison and Mitzi Rabon, Addison's ex-wife, burglarized the Ralls' residence (doc. 145, p. 94, Exhibit 1-6). The Sheriff's Department was also investigating a series of burglaries, auto burglaries, thefts, and auto thefts. On December 11, 2007, Investigator Sharon B. Caraway executed an affidavit in support of the application for a search warrant wherein she stated as follows:
(Doc. 145, p. 116, Exhibit J-16, affidavit).
The search warrant was issued for the items specified as well as "misc. tools, electronics, firearms, and jewelry" (doc. 145, p. 109, Exhibit J-13). The search was executed on December 11, 2007 at the Castleberry residence of George and Linda Stokes (doc. 145, p. 103-108, 120, Return and inventory, Exhibits J-6 through J-12, J-24). Items that had been stolen from the Ralls' residence as well as other stolen items were seized as evidence (Id.). Among the items seized was a black SKS assault rifle that was hidden in a shed on the property, rugs, and prescription medications in the name of someone other than Addison that were found in Addison's bedroom. (Id.)
Detective Sean Klaetsch reported the discovery of the assault rifle to Agent Bart Jeffrey of the Department of Justice Bureau of Alcohol Tobacco and Firearms. The ATF investigated further and interviewed two witnesses Lamar Hall and Roman Pierce (doc. 145, p. 135-136, emails between Jeffrey, Klaetsch, and Assistant United States Attorney John Cherry; p. 155-159, Letter to the Office of Professional Responsibility)
On May 29, 2008, Addison was indicted for the offense of felon in possession of a firearm (doc. 1). Trial was held in early August 2008. Investigator Caraway, Investigator Vince Heath, Investigator Justin Douglas, Justin Baker, George Mclntyre, Roman Pierce, Lamar Hall, Detective Klaetsch, and George Stokes, Summer Willis, Ramona Smith, and Linda Stokes testified. (doc. 51). On August 4, 2008, the jury found Addison guilty (Doc. 23-1, verdict form).
After trial, on November 13, 2008, Addison filed a motion for new trial based on the alleged recantation of testimony by witness Pierce (doc. 29). His motion was denied (doc. 35). On December 18, 2008, he was sentenced to a term of 120 months (doc. 38). On November 16, 2009, the conviction was affirmed on appeal (doc. 69).
Addison argued on appeal that the United States failed to establish that at the time of the search on December 11, 2007, he was in actual or constructive possession of the rifle or had control over the premises where it was found. The Eleventh Circuit held:
(Doc. 69 at p. 4-5).
After the appeal, Addison filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Rule 33 provides that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33(a). A "motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty." Fed.R.Crim.P. 33(b)(1). "A new trial based on newly discovered evidence is warranted if the defendant satisfies a five-part test:
Addison filed his motion more than three years after the jury entered the verdict of guilty on August 4, 2008. Addison argues that the time period has been equitably tolled because extraordinary circumstances prevented him from obtaining the newly discovered evidence. In United States v. Ramsey, 444 Fed. Appx. 356 (11th Cir. 2011), the circuit court stated that
Ramsey, 444 Fed. Appx, at 358.
In Holland v. Florida, 560 U.S. ___, 130 S.Ct. 2549 (2010), the Supreme Court explained that the "diligence required for equitable tolling purposes is reasonable diligence not maximum feasible diligence." Id. at 2565 (internal quotations and citations omitted). However, "[e]quitable tolling is a rare and extraordinary remedy" that calls upon the court to exercise its equitable powers "on a case-by-case basis." Lucas v. United States, ___ Fed. Appx. ___, 2013 WL 2985800, *2 (11th Cir. June 17, 2013) (citing San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir.), cert. denied, ___ U.S. ___, 132 S.Ct. 158 (2011)). Also, there "must be a causal connection between the alleged extraordinary circumstances and the late filing of the motion." Lucas, at *2 (citing San Martin, 633 F.3d at 1267.
The Court does not find that Addison meets the requirements for equitable tolling as there are no extraordinary circumstances that prevented Addison from presenting the alleged "newly discovered evidence" in a timely manner.
Addison alleges that in 2009, while his appeal was pending, "he heard rumors that a key government witness against him had recanted his testimony" to Alabama Circuit Court Judge Ashley McKathan. On June 25, 2009, he wrote Judge McKathan (doc. 145, p. 4-5, Section II; Exhibit A-1, letter). After their correspondence, Judge McKathan executed an affidavit on August 27, 2009, wherein he states as follows:
(Doc. 145, p. 39, affidavit dated August 27, 2009).
Relying on Judge McKathan's post-trial affidavit that Roman Pierce told him that the Assistant United States Attorney and the Agents asked him to "stretch the truth" (doc. 145, p. 3-5, Section II-1), Addison argues that the prosecution knew or should have known of Pierce's perjury and knowingly used the perjured testimony in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763 (1972) (doc. 145, p. 26, Sections VI and VII). Addison also argues that because of Pierce's statement that the AUSA and the Agents asked him to "stretch the truth", the AUSA "illegally vouched for the credibility" of Pierce during closing arguments by stating that Pierce did not "have a dog in this fight" (doc. 145, p. 28-29, Section IX).
In November 2008, Addison filed a motion for new trial based upon Roman Pierce's alleged recantation. In that motion, Addison's counsel states that on October 17, 2008, he contacted Pierce by telephone, told Pierce that he had been led to believe that he had recanted his testimony, but Pierce "denied having recanted his testimony." (doc. 29, p. 2). Counsel did not find Pierce's statement credible "as compared to Judge McKathan's statement" (Id.). The motion was denied. The Court explained that although Addison argued that the recanted testimony was material to the issue of his actual possession or ownership of the rifle, the United States' case was also based upon constructive possession, and there was substantial evidence of Addison's constructive possession such that Addison had failed to meet his burden of showing that there would have been a different outcome should the impeaching evidence be presented at a new trial (doc. 35).
Additionally, Addison raised the issue of whether the United States "knowingly used, solicited, or capitalized on perjured testimony from Roman Pierce and Lamar Hall during trial and during opening and closing statements" in his 28 U.S.C. § 2255 motion to vacate and attached Judge McKathan's affidavit as an exhibit (docs. 65; 66, p. 16; doc. 95). The motion was denied (docs. 109, 116).
Thus, this information is not newly discovered evidence and the Court has already thoroughly considered this information in the order denying Addison's first motion for new trial (doc. 35) and Addison's habeas petition (docs. 109, 116).
Addison states that on September 1, 2009, after he received Judge McKathan's affidavit, he began to correspond with witness George Mclntyre to find out whether the AUSA or the Agents asked Mclntyre to "stretch the truth" in his trial testimony (doc. 145, p. 5, Section 11-2; doc. 145, p. 32, Section XIII). At trial, Mclntyre testified that Addison was living with his mother Linda Stokes in December 2007 and that early that month, when he and Addison were at her residence, Addison showed him the rifle (doc. 51, p. 51-52). After corresponding with Addison, Mclntyre signed an affidavit on May 7, 2012,
Addison argues that he "exercised due diligence in attempting to discover and obtain" Mclntyre's recantation by repeatedly corresponding with Mclntyre. He argues that extraordinary circumstances beyond his control even with due diligence, specifically Mclntyre's slow response to Addison's letters and Mclntyre's failing to sign an affidavit until May 2012, entitle him to equitable tolling (doc. 145, p. 5-6; p. 32, Section XIII; Exhibits B-1 through B-5, correspondence).
Addison was aware of Pierce's recantation as early as November 13, 2008 when he filed his first motion for new trial, but ten months passed before his first letter to Mclntyre on September 1, 2009. In his first letter to Mclntyre, sent soon after receipt of Judge McKathan's affidavit, Addison asks: "Did the AUSA Mr. Cherry or AUSA Ms. O'Brien also talk with you before my trial? If they talked with you did they ask you to stretch the truth also?" (doc. 145, p. 41, Exhibit B-1). Then, Addison allowed four months to pass between his first and second letter and eighteen-months between his second and third letter.
However, assuming for purpose of this motion, that Addison could show the requisite reasonable diligence, McIntyre's affidavit is not evidence "such that a new trial would probably produce a different result." United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003). To the extent that McIntyre now questions his memory as to whether Addison or Addison's twelve-year old son Blake showed the rifle to him, this evidence "does not rise to the level for a new trial to be granted." United States v. Shaw, 482 Fed. Appx. 449, 453 (11th Cir. 2012) (finding that witness' alleged post-trial statement that he did not know defendant, after testifying that he bought drugs from defendant, "merely tended to impeach [the witness' testimony], which does not rise to the level for a new trial to be granted.").
The Eleventh Circuit Court of Appeals cited McIntyre's testimony that he saw Addison with the rifle in early December 2007 as sufficient evidence of actual possession. However, the Circuit Court also explained that there was sufficient evidence that "at the time the search warrant was executed Addison at least maintained a bedroom at Stokes' residence and had access to the shed where the rifle was recovered. Based on that, a reasonable jury could have found that Addison `exercised ownership, dominion or control' over the SKS rifle or the shed where it was kept and thus it was within his constructive possession" (doc. 69). Therefore, Mclntyre's recanted testimony
Addison states that in "light of the information . . . contained in the affidavit from Judge McKathan" which he received August 30, 2009, he wrote the City of Evergreen Police Department and the City Clerk on April 10, 2010, and requested "all the information they had pertaining to him" (doc. 145, p. 8, p. 24; doc. 145, p. 51, Exhibit D-1). For months thereafter, Addison wrote to officials of the City of Evergreen and the City of Castleberry, including a letter in March 2012 to Richard Hartley, City Attorney for the City of Evergreen, asking for copies of his case file or for any other relevant documents. Then on May 31, 2012, Hartley sent Addison the case file from the City of Evergreen Police Department for file number 07-12-057, which also contained a copy of the investigation report for the City of Castleberry (doc. 145, p. 97-149, Exhibits 1-1 through J-53). Based on the contents of his case file, Addison argues that he has newly discovered evidence that the search warrant was defective and that the rifle was illegally seized in violation of the Fourth Amendment (doc. 145, p. 8-19, Section 111).
Addison also claims that there was prosecutorial misconduct
Addison provides his stepfather George Stokes' affidavit dated July 9, 2012, purportedly to clarify Stokes' trial testimony (doc. 145, p. 50, Exhibit C). He testified in relevant part as follows:
(Doc. 51, p. 116-117, trial transcript).
In the affidavit, George Stokes states that the United States' is "piling inference on inference and speculating my testimony by stating that: I saw the gun at my house on the table with Daniel present" (doc. 145, p. 50, Exhibit C). He then states: "In clarification, let me say clearly that I do not know for a fact that it was Daniel that was there that day or had come in" (id.).
Addison argues that George Stokes `clarification impeaches not only his trial testimony but also that of Justin Baker who also testified that Addison showed him the rifle (doc. 145, p. 6-7, Section 11-3; doc. 51, p. 42-43, 46, trial transcript). However, Addison has failed to make any showing that he exercised reasonable diligence to obtain the affidavit. A period of almost four years passed between his conviction on August 4, 2011 and Stokes' affidavit. Addison presents no evidence of any attempt to obtain George Stokes' affidavit at any time before July 2012. Thus, there is no basis upon which the Court could find that Addison's failure to timely present this evidence was equitably tolled. See Ramsey, 444 Fed Appx at 358 ("As the record shows, the alleged newly discovered evidence arose out of coconspirator Dorsey's July 13, 2007 statement, but Ramsey did not explain why he did not receive this evidence until June 2009 or why he could not have obtained it sooner and still moved for a new trial within the three year period, or by August 3, 2008. As a result, the district court did not err in concluding that equitable tolling did not apply.") Moreover, George Stokes'"clarification" is not evidence "such that a new trial would probably produce a different result."Jernigan, 341 F.3d at 1287.
Addison provides Linda Stokes' affidavit dated February 7, 2012, purportedly to clarify her testimony (doc. 145, p. 30-32, Section XII; p. 160, Exhibit M-1, affidavit). Linda Stokes testified that when the officers executed the search warrant she "showed Officer Caraway where [Addison's] bedroom was" and that the officers searched the bedroom (doc. 51, p. 107). She also testified that the officers "wanted to know where his room was at. So, I showed them"(doc. 51, p. 110). When asked "Did they find some things in Daniel's room?" Stokes answered "Yes" and described the items (doc. 51, p. 111). She also explained that her bedroom was about "fifty-five feet from Daniel's bedroom" (Id).
In the affidavit, Linda Stokes clarifies that she used the phrase "`His Room" as a "figure of speech as in it used to be his room many years ago" (doc. 145, p. 160, Exhibit M-1). She also states that Addison did not live with her in December 2007 when the search was conducted or in the months before. (Id).
Addison has failed to make any showing that he exercised reasonable diligence to obtain the affidavit. See Ramsey, 444 Fed Appx at 358. A period of three and a half years passed between his conviction and the affidavit and Addison presented no evidence of any attempt to obtain Linda Stokes' affidavit at any time before February 2012. Thus, there is no basis upon which the Court could find that Addison's failure to timely present this evidence was equitably tolled. Moreover, Linda Stokes' affidavit is not evidence such that it would likely produce a different result if a new trial were granted and it is at most impeachment evidence.
Addison argues that the AUSA "illegally vouched for the credibility" of Justin Baker during closing arguments when the AUSA stated that Baker "had no dog in this fight" (doc. 145, p. 28-29, Section IX; doc. 51, p. 122). Addison asserts that because Baker was a co-defendant in the underlying state court action for the burglary of the Ralls' residence, he did have an interest in this litigation. However, the alleged illegal vouching and bolstering and Baker's status as a co-defendant are not newly discovered evidence.
Upon consideration, and for the reasons set forth herein, Addison's motion for new trial is DENIED.
