United States v. McCullah

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 23, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 03-7134 & 04-7021
(E.D. Oklahoma)
JOHN JAVILO McCULLAH, (D.Ct. No. 92-CR-32-S)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before EBEL, O’BRIEN, Circuit Judges, and STEWART, District Judge. **

This is a consolidated appeal. In Case No. 03-7134, John J. McCullah

appeals the district court’s denial of his motion for new trial under F ED . R. C RIM .

P. 33. In Case No. 04-7021, McCullah appeals the court’s denial of his motion

for sentencing relief under 28 U.S.C. § 2255, in which he raised claims based on

Brady v. Maryland, 373 U.S. 83 (1963) (failure to disclose exculpatory evidence),

*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Ted Stewart, United States District Judge for the District of
Utah, sitting by designation.
Napue v. Illinois, 360 U.S. 264 (1959) (allowing perjured testimony to stand) and

Apprendi v. New Jersey, 530 U.S. 466 (2000) (sentenced on facts not found by

jury beyond a reasonable doubt). 1 The district court granted a certificate of

appealability (COA) on the Brady and Napue claims but denied one on the

Apprendi claim. On appeal, McCullah renews his request for a COA on the

Apprendi claim. 2 Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253(a) and (c)(1), we vacate the order denying the motion for new trial because

the district court lacked jurisdiction to decide it, affirm the court’s order denying

§ 2255 relief and deny a COA.

I. Procedural History

On March 11, 1993, a jury convicted McCullah of the following: drug

1
We earlier ordered McCullah to show cause why it was appropriate to allow the §
2255 appeal to proceed while his direct appeal was pending. While there is no
jurisdictional bar to the district court deciding a § 2255 motion during the pendency of a
direct appeal, see Advisory Committee Notes to Rule 5, Rules Governing Section 2255
Proceedings for the United States District Courts (2004) (citing Womack v. United States,
395 F.2d 630, 631 (D.C. Cir. 1968)), "[a]bsent extraordinary circumstances, the orderly
administration of criminal justice precludes a district court from considering a § 2255
motion while review of the direct appeal is still pending." United States v. Cook, 997
F.2d 1312, 1319 (10th Cir. 1993). We believe these principles are no less applicable to
the question of consolidated appellate review of decisions denying § 2255 relief and a
motion for new trial. Nevertheless, we conclude, and the parties agree, that it is both
appropriate and in the interests of judicial economy for us to consider the consolidated
appeals in light of the similarity of the issues presented therein.
2
We treat McCullah’s notice of appeal of the order denying § 2255 relief as a
request for a COA on the Apprendi claim since he made no specific request for one in this
court. See FED. R. APP. P. 22(b)(2).

-2-
conspiracy in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1); conspiracy to

violate 18 U.S.C. § 1958(a) in violation of 18 U.S.C. § 371 (Count 13); interstate

travel with intent to commit murder for hire in violation of 18 U.S.C. § 1958(a)

(Count 14); and murder in furtherance of a continuing criminal enterprise in

violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2 (Count 16). As to Count 1,

the jury did not specifically find a type or amount of drug involved in the

conspiracy. The jury recommended a sentence of death on Count 16. The trial court

imposed the sentence of death on Count 16, concurrent life terms on Counts 1 and

14 and a concurrent term of five years on Count 13.

On direct appeal, we upheld all the convictions but vacated the death sentence

and remanded for resentencing on Count 16. See United States v. McCullah, 76

F.3d 1087 (10th Cir. 1996), cert. denied, 520 U.S. 1213 (1997). The mandate of

affirmance of McCullah’s convictions issued July 5, 1996. See General Docket,

U.S. Court of Appeals for the Tenth Circuit, United States v. McCullah (Case No.

93-7118). On remand, the Government withdrew its request for the death sentence.

On February 18, 2000, McCullah was resentenced on Count 16 to life imprisonment

without parole; he did not appeal. Sentences on the other counts remained

unchanged.

On February 16, 2001, McCullah filed a § 2255 motion, later amended, in

which he asserted Brady, Napue and Apprendi claims. As a prophylactic measure,

-3-
in response to the Government’s contention his § 2255 claims were unexhausted and

thus procedurally barred, McCullah filed a motion for new trial under F ED . R. C RIM .

P. 33 on the grounds of newly discovered evidence. He filed his motion on February

14, 2002, and raised the same Brady and Napue claims already presented in his §

2255 motion. The Government objected to the timeliness of the motion for new

trial. The district court avoided the timeliness issue, addressed the merits of both

the § 2255 claim 3 and the motion for new trial and denied both.

II. Threshold Issues

A. Case No. 03-7134 - No Jurisdiction

At the outset, we examine whether the district court had jurisdiction to rule on

the merits of McCullah’s motion for new trial. We conclude it did not. Federal

courts are powerless to entertain the merits of a claim over which they have no

jurisdiction even if the parties fail to raise the issue. Bender v. Williamsport Area

Sch. Dist., 475 U.S. 534, 541 (1986). In particular, federal courts may not assume

jurisdiction in order to reach a question on the merits simply because it is more

easily resolved than the jurisdictional one. Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 93-94 (1998). “The requirement that jurisdiction be established as a

threshold matter spring[s] from the nature and limits of the judicial power of the

3
The court did not hold an evidentiary hearing. Instead, it relied on McCullah’s
submissions which included exhibits and deposition testimony.

-4-
United States and is inflexible and without exception.” Id. at 94 (quotation marks

omitted). Rule 33 time limits are jurisdictional. United States v. Quintanilla, 193

F.3d 1139, 1148 (10th Cir. 1999).

The timeliness of McCullah’s Rule 33 motion turns on which version of the

rule applied to his filing. Rule 33 was amended in 1998. Pre-amendment, the rule

provided: “A motion for a new trial based on the ground of newly discovered

evidence may be made only before or within two years after final judgment . . . .”

F ED . R. C RIM . P. 33 (1998). When McCullah filed his motion, the amended rule

provided: “A motion for new trial based on newly discovered evidence may be made

only within three years after the verdict or finding of guilty.” F ED . R. C RIM . P. 33

(2002). In the district court, the parties disputed which version applied. 4 We need

not decide the question because McCullah’s motion was untimely under either one.

The jury returned its verdicts on March 11, 1993. Under the amended rule,

McCullah had three years, until March 12, 1996, to file his motion. Therefore, his

motion for new trial under the amended rule, filed February 14, 2002, was untimely.

Whether McCullah’s motion would have been timely under the pre-amendment rule

turns on the meaning of “final judgment.” “All the courts which have considered

4
In its order adopting the amendment, the Supreme Court stated it should “govern
all proceedings in criminal cases thereafter commenced and, insofar as just and
practicable, all proceedings in criminal cases then pending.” FED. R. CRIM. P. Orders of
the Supreme Court of the United States Adopting and Amending Rules, Order of April
24, 1998 (emphasis added).

-5-
the meaning of ‘final judgment’ . . . have concluded that ‘final judgment’ includes

the mandate of affirmance from the appellate court.” Casias v. United States, 337

F.2d 354, 356 (10th Cir. 1964). In considering the meaning of “final judgment” we

bear in mind the purpose of a Rule 33 motion. It is to obtain a new trial, not a new

sentencing. Therefore, we conclude “final judgment” in the context of Rule 33

means issuance of the mandate of affirmance of conviction from the appellate court,

even if, as here, sentencing issues remain. In arriving at this conclusion, we adopt

the reasoning of the Second Circuit in deciding the same issue. See United States v.

Camacho, 370 F.3d 303, 307 (2nd Cir. 2004), cert. denied, 125 S.Ct. 1619 (2005)

(“A defendant's ability to bring newly discovered evidence to light in a new trial in

no way hinges on the fate of the sentence imposed on his or her original

conviction.”). Under the pre-amendment rule, McCullah’s motion was untimely

because he filed it February 14, 2002, more than two years after the date of issuance

of the mandate of affirmance of conviction on July 5, 1996. Therefore, whether

considered under amended Rule 33 or the pre-amendment rule, the district court

erred in assuming jurisdiction to consider the merits of McCullah’s motion for new

trial.

B. Case No. 04-7021 - No Procedural Bar

As noted, McCullah’s motion for new trial was prompted by the

Government’s argument his § 2255 motion was procedurally barred for failure to

-6-
raise the Brady and Napue claims on direct appeal. Although the Government fails

to press the issue with any vigor on appeal, we nonetheless dispose of it. “A

defendant is procedurally barred from presenting any claim in a section 2255

petition that he failed to raise on direct appeal unless he can demonstrate cause for

his procedural default and prejudice suffered thereby, or that the failure to hear his

claim would result in a fundamental miscarriage of justice.” United States v.

Wright, 43 F.3d 491, 496 (10th Cir. 1994). In order to enforce the bar, we must

conclude McCullah could have but failed to present his newly discovered evidence

in the time allowed by Rule 33. He has stated “[d]efense counsel only began to

learn of the withheld evidence in late December of 1997, in response to a subpoena

issued to the United States Parole Commission.” (Tr. R. Vol. 1, Docket Entry 835 at

14). While this date, if uncontradicted, is outside the deadline set by amended Rule

33 (March 12, 1996) and thus would not result in procedural bar, it is within the

deadline allowed by pre-amendment Rule 33 (July 5, 1998) and thus implicates the

bar. In the interests of judicial economy, however, we choose to avoid deciding the

procedural bar issue and instead resolve the case on the merits. See Wright, 43 F.3d

at 496 (deciding § 2255 claim on the merits instead of resolving procedural bar).

III. Standard of Review

In a § 2255 appeal, we review the district court’s factual findings for clear

error and its legal conclusions de novo. United States v. Kennedy, 225 F.3d 1187,

-7-
1193 (10th Cir. 2000). As to a request for COA, we lack jurisdiction to review the

merits of a claim until a COA is issued. 28 U.S.C. § 2253(c)(1)(B); Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). A COA can issue only “if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of

reason could disagree with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El, 537 U.S. at 327 (citing Slack v.

McDaniel, 529 U.S. 473, 484 (2000)).

IV. Factual Background

A. Trial Record

On direct appeal, we recited material facts established by the evidence at trial.

Identifying no advantage in replowing furrowed ground, we repeat them here:

This case arises from the activities of a large California-based drug
organization managed by Joseph "Eddie" Arvizu. The Arvizu
organization distributed cocaine and marijuana across the country in
trucks. Members of the organization included: Ray Molina, Mr.
Arvizu's cousin and confidante; Norwood Hutching, an Oklahoma
rancher and businessman who oversaw the cross-country transportation;
Tony Wiscowiche, a close confidante of Mr. Arvizu; Thomas "Stimey"
Sanchez, a guard and occasional drug courier; and Gabriel Lozano,
another guard and courier.

In April 1991, a pickup truck containing nearly 100 kilograms of
cocaine was stolen from the Arvizu organization by James Shiew, one
of the organization's cross-country drivers. The truck was parked at the
Hulbert, Oklahoma, residence of Ruth Ford at the time of the theft.

-8-
Upon learning of the truck's disappearance, Mr. Hutching launched a
search, offering a reward for the truck's recovery. Both Mr. Hutching
and Mr. Arvizu questioned Mr. Shiew about the theft, but he skillfully
diverted suspicion from himself and instead implicated a man named
Avery Rogers. Mr. Rogers, who operated a combination used car lot
and pig farm, was a friend of Ruth Ford, from whose residence the
truck had been stolen. Mr. Hutching and Mr. Arvizu soon began to
suspect that Mr. Rogers and Ms. Ford were behind the theft.

The Arvizu organization, led by Mr. Arvizu himself, set up
headquarters in Tulsa, Oklahoma, to oversee the recovery of the stolen
drugs. The organization attempted to kidnap Ms. Ford and make her
reveal the whereabouts of the drugs, but this plan was thwarted when
Ms. Ford refused to open her door.

Mr. Arvizu's next plan involved an attempted kidnapping and torture of
Mr. Rogers. This plan was abandoned when one of Mr. Rogers' farm
animals began making noise, betraying the kidnappers' presence.

Mr. Arvizu then decided to attempt a roadside ambush of Mr. Rogers.
As Mr. Rogers drove home along a wooded road in his truck, a car
blocked the road ahead of him while a van blocked the rear. Mr.
Molina and Mr. Sanchez emerged from the car and began firing at Mr.
Rogers. Mr. Rogers backed his truck off the road out of the ambush
and eventually smashed his truck into a tree in the woods. Under cover
of the woods, Mr. Rogers returned to his home on foot and notified the
police. After the failure of this ambush, Mr. Arvizu and his party
returned to California.

Mr. Arvizu continued to plot against Mr. Rogers after his return to
California. In May 1991, Mr. Arvizu hired three non-English-speaking
Mexican gunmen--"pistoleros"--and had Mr. Wiscowiche drive them to
Oklahoma. Meanwhile, Mr. Molina recruited Joe Mendoza and Mr.
McCullah in California to assist in the recovery of the stolen drugs.
Mr. McCullah, Mr. Molina, Mr. Mendoza, and Mr. Sanchez all drove
from California to Oklahoma together in late May.

Mr. Molina's group rendezvoused with the pistoleros at a lake house in
Wagoner, Oklahoma. They were joined there by two other Mexican
nationals, bringing the total to five: Poncho, Carlos, Juan, Mikey, and

-9-
Roberto. Mr. Arvizu and Mr. Hutching arrived at the lake house
shortly thereafter, the latter bringing a large cache of firearms. Mr.
Arvizu and Mr. Hutching then departed the lake house, never to return.

The group remained at the lake house for about two weeks under the
supervision of Mr. Molina. During that time, several plans were
devised to kill Mr. Rogers. The initial plan, formulated by Mr. Arvizu
and Mr. Molina, was to kidnap and torture Mr. Rogers until he revealed
the whereabouts of the drugs, then kill him. A second plan, suggested
by Mr. Molina, was to go to Mr. Rogers' used car lot and kill everyone
there and then to go after Ms. Ford. The plan finally adopted, designed
by either Mr. Wiscowiche and Mr. McCullah, or by Mr. Sanchez, Mr.
McCullah and Poncho, was to lure Mr. Rogers away from the used car
lot and kill him. Mr. McCullah, being the lone non-Hispanic,
volunteered to act as the lure, reasoning that he would arouse less
suspicion than the others.

The group then undertook the necessary preparatory steps. Mr.
Wiscowiche and Mr. McCullah, acting on Mr. Arvizu's instructions,
purchased a total of four used vehicles for the operation. At Mr.
Molina's direction, Mr. McCullah and Mr. Wiscowiche also purchased
ammunition for the various weapons, and Mr. Wiscowiche cleaned the
weapons. Mr. Wiscowiche, Mr. McCullah, and Poncho drove around
the region and selected an appropriate ambush site. Mr. McCullah,
accompanied by Mr. Wiscowiche, reconnoitered the area around the
used car lot. Finally, Mr. Wiscowiche attempted to cut the telephone
line leading to Mr. Rogers' car lot, but inadvertantly only cut the
ground wire.

On June 3, 1991, Mr. McCullah, posing as a prospective customer, met
Mr. Rogers at his used car lot. Mr. Rogers took Mr. McCullah for a
test drive in a Pontiac Fiero, driving out to the ambush site. At the
conclusion of the test drive, Mr. McCullah stated that he would return
later that day, but he failed to do so. Mr. McCullah reported back to
the lake house that Mr. Rogers was "going for the bait."

The next morning, Mr. Molina departed for Los Angeles. He gave Mr.
Wiscowiche $5,000 to distribute among the people remaining at the
lake house, with $2,000 to go to Mr. McCullah. Mr. Wiscowiche
distributed the money as directed.

-10-
 Pursuant to the ambush plan explained by Mr. McCullah and Poncho,
the other participants drove to their assigned places. Mr. McCullah
returned to Mr. Rogers' used car lot, chose another car and asked to test
drive it. Unable to accompany him, Mr. Rogers asked one of his
employees, Jewell Leon Collins, primarily a detail man, to accompany
Mr. McCullah on the test drive. Mr. Collins bore no resemblance to
Mr. Rogers. Regardless, Mr. McCullah departed the lot with Mr.
Collins in a 1975 Chevrolet.

Mr. McCullah drove the Chevrolet to the prearranged ambush site with
Poncho and Carlos following them in another car. Mr. Mendoza and
Juan were already on-site in another car to pick up the gunmen. Upon
arrival at the ambush site, Mr. McCullah stopped the car and quickly
exited the vehicle, leaving Mr. Collins in the vehicle. At the same time
Poncho emerged from the trailing car, ran to the Chevrolet, and fired a
single shot at point-blank range into Mr. Collins' head, killing him
instantly. Mr. McCullah drove away in Poncho and Carlos's car, while
Poncho and Carlos joined Mr. Mendoza and Juan in the waiting vehicle.
The four drove onto a nearby dirt road and discarded their firearms in
the undergrowth.

The entire group except for Mr. McCullah, who apparently returned to
California by himself, rendezvoused at a restaurant in Wagoner,
Oklahoma, and then proceeded to the Tulsa airport. Mr. Wiscowiche,
Carlos and Poncho flew back to Los Angeles, and the others returned
by car or bus.

Soon after the murder, the Arvizu organization's drug trafficking
operation came under the scrutiny of California law enforcement
officials. As the investigation progressed, some members of the
organization, including Mr. Lozano, Mr. Wiscowiche and Mr. Shiew,
were persuaded to come forward and cooperate with the investigation.
This allowed the FBI to piece together what happened in Oklahoma and
led to the eventual arrest and 29-count superseding indictment of Mr.
McCullah, Mr. Molina, Mr. Mendoza, Mr. Sanchez, and Mr. Hutching.
Mr. Arvizu fled to Mexico in January 1992 and has not been seen since.
Before the trial began, Mr. Mendoza negotiated a plea bargain in return
for his cooperation and trial testimony.

McCullah, 76 F.3d at 1095-97. Wiscowiche testified McCullah told him he could

-11-
have killed Rogers during the first test-drive if only he had been provided a firearm.

Apart from forensic evidence placing him at the lake house, 5 McCullah was

convicted of participation in the drug conspiracy and in the planning and execution

of the murder largely on the testimony of confederates Wiscowiche and Mendoza. 6

Each had a multiple felony history. Wiscowiche was not charged, although, at the

time he testified, the Government had made no promises to him that he could avoid

charges by testifying. Mendoza, as indicated, plea-bargained in exchange for his

5
An FBI fingerprint specialist identified the prints on a plastic container found at
the lake house to be those of McCullah.
6
Gabriel Lozano, an Arvizu lieutenant, testified that at the behest of law
enforcement, in a monitored conversation, he elicited from McCullah details of the
slaying. These details matched the accounts of Wiscowiche and Mendoza. In this
conversation, McCullah stated he was willing to return to Oklahoma and kill Rogers. We
decided on direct appeal that the statement was coerced and its admission was error.
However, at least in the guilt phase, we concluded the error was harmless. United States
v. McCullah, 76 F.3d 1087, 1100-02 (10th Cir. 1996). We added:

Reviewing the evidence against Mr. McCullah, we find that there was
overwhelming evidence to convict Mr. McCullah of the crimes charged
even in the absence of his coerced statements. The coerced statements
mainly pertained to Mr. McCullah's actions in Oklahoma, and the record is
replete with a tremendous amount of other evidence as to Mr. McCullah's
actions in Oklahoma. Evidence of fingerprints together with the testimony
of several witnesses placed Mr. McCullah in Oklahoma at the lake house
and at the homicide scene. Several witnesses testified to Mr. McCullah's
pivotal role in both the planning and execution of the murder, as well as to
the payment he received. We find that with regard to Mr. McCullah's
convictions, the admission of Mr. McCullah's statements to Mr. Lozano was
harmless beyond a reasonable doubt.

Id. at 1101-02.

-12-
testimony. 7 With these arrangements in mind, the trial court gave the jury curative

instructions urging caution and scrutiny in evaluating the testimony of these

witnesses. 8

A third witness whose testimony tended to implicate McCullah was Avery

Rogers, a man of central interest to this appeal. He was asked whether he could

7
Mendoza agreed to plead guilty to conspiracy to travel in interstate commerce
with the intent to commit murder for hire in violation of 18 U.S.C. §§ 1958(a) and 371.
He was eventually sentenced to sixty months imprisonment.
8
The court instructed as follows:

Testimony of Informant

The testimony of an informant or any witness whose self-
interest is shown to be such as might tend to promote or
encourage testimony unfavorable to a defendant should
always be considered with caution and weighed with great
care and scrutiny in light of all of the evidence in determining
its credibility.

Witness - Personal Advantage

The testimony of a witness who provides evidence against a
defendant or defendants for his own advantage that it will
give to him or in contemplation of immunity or reduction
from punishment must be examined and weighed with greater
care or greater scrutiny than the testimony of an ordinary
witness. You must determine whether the witness’s testimony
has been affected as to its credibility by any interest he has in
any special treatment he receives or any interest he has in the
outcome of the trial or any prejudice he has against that
defendant or those defendants.

(Tr. R. Vol. 1 at 496.)

-13-
identify the man who test-drove the Pontiac Fiero on June 3 and who returned the

next day to test-drive the Chevrolet with Jewell Collins. This colloquy ensued:

Q. Do you see that man here in the courtroom?

A. I can’t make a positive.

Q. Do you see anyone who looks like that man?

A. Sure do.

(Tr. R. Vol. 5 at 45). With the stated caveat, he identified McCullah.

On direct examination by the Government, Rogers admitted to having a

federal conviction in 1983 for conspiracy to possess a controlled substance with

intent to distribute. 9 For this offense, he received a ten-year sentence. He was

paroled after thirty months. He attributed his early parole to his laudable

performance as captain of the prison fire department in putting out a fire in a nearby

town. He denied being an FBI informant, paid or unpaid.

Rogers testified he helped look for the stolen pickup truck at Hutching’s

request, pretending to the jury he had no knowledge of its hidden cargo. After first

suggesting he helped look for the truck free of charge, he grudgingly admitted to an

understanding that Hutching held out a reward for its location. He added the truck

itself was worth between $4,000 and $5,000. He minimized the number of times he

had contact with Hutching during the period when he was looking for the truck,

9
He also admitted to having an Oklahoma conviction for burglary in 1961.

-14-
claiming it was only two to four times. In fact, FBI records indicated that between

April 15 and June 5, 1991, the two conversed by phone (or attempted to) forty-six

times. At one point, the Government impeached Rogers with his grand jury

testimony on the question whether he was familiar with Hutching’s finances.

In cross-examination, McCullah’s counsel attacked Rogers’ tentative

identification of McCullah. Defense counsel representing another defendant

attacked Rogers’ credibility by alluding to the fact Rogers had failed a polygraph

test and by raising the issue of Rogers’ prior acquaintance with the lead FBI

investigator in the case, Agent Ray Collins (no relation to the murder victim).

Rogers stated he reached out to Agent Collins during the investigation of the Jewell

Collins killing because he did not trust the local authorities. Rogers admitted Agent

Collins had been the arresting officer in the offense leading to his 1983 federal

conviction.

This cross-examination ensued:

Q. And after that time [the arrest], have you had conversations with
him from the time you were arrested and put in a federal
penitentiary until you came to him this time?

A. Maybe occasionally, at a racetrack or something I might speak to
him or something like that.

Q. Other than at a racetrack, have you talked to him at his office on
any official business?

A. I don’t recall any.

-15-
(Id. at 82.)

And then this colloquy:

Q. During the time you were in the federal penitentiary did you have
any conversation with Special Agent Rayburn Collins?

A. I might have had on one occasion.

Q. Can you tell us, sir, if you are not an FBI informant?

A. I’m sure not.

Q. Well, why in the world would Mr. Collins want to talk to you in
the federal penitentiary when you’re locked up?

A. Why does a lot of people come to the federal prisons, I don’t
know.

Q. It wasn’t to get information?

A. No.

Q. He was just there to visit with you?

A. Well, I don’t work for the Government and I’m not no federal
employee.

Q. I’m not claiming they are paying you for it, I’m just asking if he
did come to the penitentiary to talk to you, and you say it wasn’t
to get information?

A. Yes, not from me.

Q. Huh?

A. He didn’t get any information from me.

Q. He just went there to visit?

-16-
 A. I guess.

(Id. at 91-92.) When Agent Collins later testified, McCullah’s counsel declined to

cross-examine him with respect to the meeting he had with Rogers while Rogers was

confined in the federal penitentiary.

Rogers also testified a test-drive normally did not exceed thirty minutes.

Nonetheless, he waited anywhere from two to four hours to report Jewell Collins’

absence to local authorities. In cross-examination, Agent James Powell of the

Oklahoma State Bureau of Investigation (OSBI), who initially took charge of the

murder investigation, 10 testified he found Rogers’ delay in reporting Jewell Collins

missing to be suspicious. Furthermore, Rogers lied to him frequently during the

investigation: he denied involvement with drugs when he himself was looking for

the stolen cocaine in order to obtain a reward; 11 he lied when he denied knowing

Hutching; and he lied when he claimed to have never previously seen the van

McCullah drove to his car lot on June 4. 12 The cloud of suspicion over Rogers’

10
Immediately after the Jewel Collins murder, local law enforcement requested the
assistance of the OSBI. Rogers eventually told OSBI Agent Powell he wanted to speak
with FBI Agent Collins because he trusted him. McCullah was informed of Rogers’
request in pre-trial discovery. In August 1991, FBI Agent Collins asked OSBI Agent
Powell to cede the investigation to the FBI due to the fact its scope was emerging broader
than a simple homicide. Agent Powell agreed.
11
Agent Powell testified Rogers, in the period leading up to Jewell Collins’ murder,
told others there were 100 kilograms of cocaine in the stolen truck.

Rogers eventually testified the individual he tentatively identified as McCullah
12

drove the same van into his car lot the previous day.

-17-
account further darkened when Agent Powell testified that Rogers was observed

earlier in the day on June 4, before McCullah came to the car lot, visiting with the

driver of a van matching the description of the van McCullah eventually drove into

the car lot later in the day.

Defense counsel revisited the topic of Rogers’ status as an FBI informant in

cross-examining Agent Powell:

Q. Do you know whether or not Avery Rogers has ever been a paid FBI

informant?

A. Not to my knowledge.

Q. Do you know how it is that he got out of the federal penitentiary early?

A. I know what he told me.

Q. Well, we’ve established that you can’t believe a lot that he tells you.

(Id. Vol. 10 at 105-06.)

In pretrial proceedings, the Government informed the court and McCullah that

it had exceeded its discovery obligation under Brady, and it asserted it understood

its obligation to continually discover exculpatory material to the defense. With

these assurances, McCullah’s counsel did not search for Brady material in the

Government’s possession.

B. 2255 Record

In support of his § 2255 motion, McCullah submitted exhibits relative to

-18-
Rogers’ imprisonment, release, parole and termination of parole for his 1983 federal

drug conviction. This evidence tended to establish that Rogers provided useful

information to FBI Agent Collins in aid of obtaining early release from prison.

McCullah also deposed Agent Collins and Rogers.

Agent Collins testified a member of Rogers’ family contacted him during the

time Rogers was incarcerated in Oklahoma on his 1983 federal drug conviction.

The family member informed Agent Collins that Rogers wanted to meet with him.

Agent Collins met with Rogers in about June 1996 and Rogers offered to provide

information on criminal activities in eastern Oklahoma. After a brief conversation,

Agent Collins concluded Rogers was lying and had nothing of value to offer. “[H]e

was wanting to BS me.” (2255 R. Vol. 10 at 59.) Agent Collins immediately wrote

him off as a potential source. 13 He characterized Rogers’ account of the prison

meeting in his trial testimony (in which he denied the purpose of Agent Collin’s

visit was to obtain information from him) as hedging and evasive, but not

perjurious.

In his deposition, Rogers acknowledged that during his prison meeting with

Agent Collins he offered to provide information on drug-related activities in

Oklahoma, although he could not recall any information he provided. He denied he

Collins testified Rogers failed to meet his definition of a source, let alone an
13

informant.

-19-
offered to be an FBI informant. Also, he testified he did not work with or provide

information to Agent Collins or anyone else connected with law enforcement after

his release from prison.

V. Discussion

A. Brady and Napue Claims

“[T]he suppression by the prosecution of evidence favorable to an accused . .

. 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.” Brady,

373 U.S. at 87. This is true whether or not the defense requests, specifically or

generally, the exculpatory material. United States v. Agurs, 427 U.S. 97, 106-08

(1976). 14 Impeachment evidence falls within the Brady requirement. United States

v. Bagley, 473 U.S. 667, 676 (1985). Furthermore, “a conviction obtained through

use of false evidence, known to be such by representatives of the State,” violates

due process. Napue, 360 U.S. at 269. The same is true when the state, “although

not soliciting false evidence, allows it to go uncorrected when it appears.” Id. Once

again, the rule applies even if the false evidence goes only to the credibility of the

witness, id., and notwithstanding the good or bad faith of the prosecution. Giglio v.

14
“[I]f a prosecutor asserts that he complies with Brady through an open file policy,
defense counsel may reasonably rely on that file to contain all materials the State is
constitutionally obligated to disclose under Brady.” Strickler v. Greene, 527 U.S. 263,
283, n.23 (1999).

-20-
United States, 405 U.S. 150, 154 (1972).

In order to establish a Brady or Giglio [or Napue] violation, the
defendant bears the burden of establishing (1) that the prosecution
suppressed the evidence, (2) that the evidence was favorable to the
accused, and (3) that the evidence was material. According to the
Supreme Court, the criterion of materiality is met only if there is a
reasonable probability that the outcome of the trial would have been
different had the evidence been disclosed to the defense.

United States v. Gonzalez-Montoya, 161 F.3d 643, 649 (1998) (quotation marks and

citation omitted). The prosecution cannot overcome materiality by demonstrating

that there was sufficient evidence to convict absent the undisclosed evidence. Kyles

v. Whitley, 514 U.S. 419, 434-35 (1995). The gist of materiality is a “showing that

the favorable evidence could reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict.” Id. at 435. Cf. Agurs,

427 U.S. at 112 (“[I]f the omitted evidence creates a reasonable doubt that did not

otherwise exist, constitutional error has been committed. This means that the

omission must be evaluated in the context of the entire record.”).

For his Brady claim, McCullah alleges the Government withheld the

following material exculpatory impeachment evidence from him:

A. Rogers was an FBI informant. Evidence tending to establish this fact:

1) while incarcerated on a federal drug offense in 1986, in aid of

obtaining a sentence reduction, Rogers met with Agent Collins and

provided him with information relative to illegal drug activities in

-21-
 eastern Oklahoma; 2) as a result, his sentence was reduced and he was

immediately eligible for parole; 3) shortly thereafter, in 1987, he was

paroled.

B. Even if he was not an FBI informant, Agent Collins considered Rogers

a liar.

C. Rogers violated his parole (scheduled to expire in June 1995) by

associating with Norwood Hutching, a convicted felon engaged in

continuing criminal activity. Rogers lied to his probation officer about

his association with Hutching. Furthermore, Agent Collins knew of it

and failed to disclose the violation to Rogers’ parole officer.

D. Rogers told his parole officer (who told him to tell Agent Collins) that

one Greg Smith, a fugitive featured on the TV program “America’s

Most Wanted,” resembled the person who test-drove vehicles at his car

lot as part of the murder plot.

For his Napue claim, McCullah alleges the Government knowingly permitted

Rogers to give material false testimony (denied being an FBI informant) in order to

convict him. McCullah contends Agent Collins sat with prosecutors during the false

testimony and allowed it to stand.

The district court concluded there was insufficient evidence Rogers was an

FBI informant and, therefore, there could be no Brady or Napue violation based on

-22-
failure to disclose informant status. Even if Rogers was an FBI informant, the court

concluded non-disclosure of this fact was not material. As to McCullah’s remaining

claims of withheld evidence, 15 the court found that even if true there was again a

failure of materiality. We avoid discussion of whether the prosecution suppressed

evidence favorable to the accused or permitted perjured testimony to stand, assume

it did, and immediately address materiality.

McCullah contends Rogers’ identification of him as the person who left the

car lot with Jewell Collins was 1) the strongest evidence the Government had

implicating him in the murder-for-hire scheme and 2) essential to his conviction. In

his view, if only he had been able to cross-examine Rogers about his status as an

FBI informant, his claim another person resembled the test-driver who left his lot

with Jewell Collins, 16 the fact Agent Collins considered him to be untruthful and

15
The district court concluded that insofar as Rogers’ alleged informant status was
based on records of his parole for his 1983 conviction, McCullah could have accessed this
material through discovery. Implicit in this conclusion is the view that parole materials
relative to Rogers’ imprisonment, release, parole and termination of parole for his 1983
drug conviction were not subject to Brady disclosure. See Strickler, 527 U.S. at 281 (“In
order to comply with Brady, therefore, the individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the government's behalf in this case,
including the police.” (quotation marks omitted) (emphasis added)). McCullah contends
that Rogers’ parole materials were subject to Brady disclosure. Because we decide the
appeal on the basis of materiality, we do not reach the question whether the U.S. Parole
Commission, in supervising Rogers’ parole in 1991 (Rogers remained on parole for his
1983 federal conviction until 1994), was acting on the Government’s behalf such that its
records were subject to Brady disclosure.

McCullah claims in his brief that Rogers had previously identified one Greg
16

Smith as the person who came to his car lot and left with Jewell Collins. This overstates

-23-
violations of his parole status that were known to the Government and overlooked,

he would have destroyed Rogers as a disinterested and credible witness, undermined

the tenuous testimony of Wiscowiche and Mendoza and won an acquittal. The

persuasiveness of his argument is in inverse proportion to the degree to which it

overstates the effect of Rogers’ testimony.

Turning first to McCullah’s argument that Rogers’ testimony was the

strongest evidence the Government had to implicate him in the murder-for-hire

scheme, this is plainly not so. We find it neither necessary nor productive to

recount at length the abundant evidence Wiscowiche and Mendoza provided to

implicate McCullah in the planning and execution of the murder scheme. Apart

from their testimony recounting McCullah’s intimate involvement in every step of

the plan, each, without hesitation, positively identified McCullah as the person who

left the lake house in the crew’s van en route to Rogers’ car lot on the day of the

killing. Mendoza testified McCullah drove to the ambush site with the man later

the evidence, which comes from a chronological contact entry Rogers’ parole officer
made in Rogers’ file on July 15, 1991:

Avery telephoned the office today and [said] that they were watching
America’ [sic] Most Wanted and it was Greg Smith who is a fugitive, 37
years old, that shot a cop and a tag agent up north of Tulsa. Sure looked
like the guy that was out there test driving. He wanted me to see if I could
get some pictures so he could identify the guy.

(2255 R. Vol. 3, Docket Entry 27, Ex. 12 at 12) (emphasis added).)

-24-
identified as Jewell Collins, stopped, alighted from the driver’s seat, quickly

occupied the trailing car and escaped. Meanwhile, Poncho alighted from the trailing

car, murdered Jewell Collins, joined Mendoza and escaped. While Wiscowiche and

Mendoza positively identified McCullah, Rogers’ identification of him was

tentative. This undercuts McCullah’s argument the Government suppressed evidence

and abided perjury in order to obtain convincing identification testimony from

Rogers. If anything, Rogers’ identification was the weakest arrow in the

Government’s quiver.

McCullah’s argument that Rogers’ identification of him was essential to his

conviction rests upon twin propositions: a) the testimony of Wiscowiche and

Mendoza was tenuous and depended on the corroboration of Rogers, whom the

Government presented as disinterested and credible, and b) Rogers was not a

disinterested or credible witness. Neither proposition succeeds.

In an effort to diminish the impact of the damning testimony Wiscowiche and

Mendoza gave of McCullah’s involvement in the planning and execution of the

murder scheme, defense counsel effectively cross-examined them on their criminal

records and arrangements they had with the Government to secure their testimony.

Although it is impossible to measure the degree to which counsel succeeded, we

note the testimony of the two confederates was consistent, overwhelming and

convincing. To be sure, these are men of checkered pasts who were themselves

-25-
heavily involved in the murder scheme. However, this is true of many successful

drug prosecutions. As those who practice regularly in the federal courts well know,

when drug organizations are uncovered it is common to witness a “race to the

courthouse” by the wrongdoers in an effort to strike an early agreement with the

Government to protect themselves. In these agreements, the consideration

exchanged typically involves a willingness to testify for the Government. To assure

the jury properly weighed the evident self-interest of Wiscowiche and Mendoza, the

trial court twice instructed it to approach their testimony with caution and scrutiny.

Even discounting their testimony for rigorous cross-examination and the acidic

effect of the curative instructions, still we conclude it was resilient and convincing.

It was not, as McCullah suggests, either tenuous or in need of an alleged bolstering

effect from Rogers’ testimony.

We finally turn to whether the Government presented Rogers as a

disinterested and credible witness and whether in fact he was one. The answer is

“no” on both counts. The Government began its examination of Rogers by eliciting

his prior felony history and his imprisonment for drug distribution. The

Government, not defense counsel, raised the spectre of Rogers’ status as an FBI

informant. Trial counsel for one of McCullah’s co-defendants cross-examined

Rogers with some vigor with respect to his prison meeting with Agent Collins. At

first, Rogers denied ever having met with Agent Collins in prison. He then admitted

-26-
to the prison meeting but denied its purpose was to provide information. For

reasons not apparent, McCullah’s counsel declined to cross-examine either Rogers

or Agent Collins on the prison meeting even though cross-examination of Agent

Powell plainly suggested Rogers’ exchange of information was the quid pro quo for

his early release. This failure to cross-examine, standing alone, diminishes the

effect McCullah now argues we ought to give Rogers’ withheld relationship with

Agent Collins.

If not an outright prevaricator, Rogers demonstrated his skill on the witness

stand at self-serving obfuscation. Surely this was not lost on the jury. After first

denying he was searching for the cocaine-laden truck with any purpose other than to

help out a friend, he admitted to understanding Hutching held out a reward for its

recovery. While pretending to have no idea of its hidden cargo, Agent Powell

testified Rogers told others the truck was laden with 100 kilograms of cocaine.

Agent Powell also testified to a series of lies Rogers told in the early stages of the

investigation, in particular his denial of an association with Hutching. While

Rogers tried to minimize this association, surely the jury took note of evidence he

had telephone communication (or attempted communication) with Hutching forty-six

times between April 15 and June 5, 1991. At first denying he was familiar with

Hutching’s financial practices, Rogers admitted to his knowledge only after the

Government impeached him with his own grand jury testimony.

-27-
 Rogers’ credibility was also undermined by testimony tending to suggest he

met with a member of the lake house gang on the morning of and prior to

McCullah’s second fateful visit to his car lot. The distinct impression left by this

dark testimony was that Rogers arranged with the killers for Jewell Collins to

substitute for him on the death ride. This is hardly the profile of a witness groomed

to perfection by the Government or a witness whose testimony carried the day only

because of suppressed evidence of his prior relationship with Agent Collins, the fact

Agent Collins considered him a liar, his violation of parole and his claim another

individual resembled the man who left his car lot with the murder victim.

With or without his alleged perjury or other suppressed evidence, it is

unlikely the jury would have relied on Rogers in order to believe the testimony of

Wiscowiche and Mendoza. Nor are we able to conclude that if the jury believed the

Government deliberately allowed Rogers’ alleged perjury to stand it would have

held such a connivance against the testimony of McCullah’s confederates. If

anything, the evidence demonstrates Rogers swam in the same lagoon with the

killers and the jury likely put little credence in him. No doubt it had to pick and

choose truth and falsity from his testimony. Therefore, we conclude Roger’s

testimony was neither the strongest the Government offered to prove McCullah’s

identity nor essential to his conviction. The suppressed evidence, because it would

have added little to the jury’s view of Rogers, could not “reasonably be taken to put

-28-
the whole case in such a different light as to undermine confidence in the verdict.”

Kyles, 514 U.S. at 435. There being a failure of materiality, the district court

correctly concluded there was no Brady or Napue violation.

B. Apprendi Claim (COA)

McCullah contends his sentence of life imprisonment on Count 1 for drug

conspiracy, pursuant to 21 U.S.C. § 846(b)(1)(A), depended on a finding by the

sentencing judge of the type and amount of drugs involved in the conspiracy. 17 He

argues this violates the rule of Apprendi that a jury must find such sentence

enhancing facts by proof beyond a reasonable doubt. According to McCullah,

absent a jury finding the type or amount of drug involved in the conspiracy, he

ought to have been sentenced under 21 U.S.C. § 841(b)(1)(D) (permitting a sentence

of no more than five years if the conviction involves less than fifty kilograms of

marijuana).

17
Count 1 of a superseding indictment charged McCullah with conspiracy to
knowingly and intentionally possess with intent to distribute and to knowingly and
intentionally distribute in excess of five kilograms of cocaine and in excess of 100
kilograms of marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1). The jury
convicted on Count 1 without a specific finding as to the type (cocaine or marijuana) or
the amount of drug involved. The law provides a penalty of ten years to life if a
conviction involves five kilograms or more of cocaine, a penalty of five to forty years if
the conviction involves 500 grams or more of cocaine or 100 kilograms or more of
marijuana, a penalty of no more than twenty years if no amount of either drug is specified
and a penalty of no more than five years if the conviction involves less than fifty
kilograms of marijuana. 21 U.S.C. § 841(b)(1)(A)(ii)(II),(B)(vii), (C) and (D). The
district court sentenced on the basis of a conviction involving five kilograms or more of
cocaine (the only combination of type and amount of drug supporting a life sentence).

-29-
 “Other than the fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. See also Jones

v. United States, 526 U.S. 227, 243 n.6 (1999) (same, construing federal statute).

We settled the question of the retroactivity of Apprendi on collateral review in

United States v. Mora:

Apprendi clarifies that certain questions that were previously thought to
be properly determined by the court must now be proved to a jury
beyond a reasonable doubt. While this rule arguably increases the
accuracy of convictions, it is a rule that simply shifts the fact-finding
duties from an impartial judge to a jury.

293 F.3d 1213, 1219 (10th Cir. 2002) (quotation marks omitted). “Apprendi is not a

watershed decision and hence is not retroactively applicable to initial habeas

petitions.” 18 Id. Our decision foreshadowed a similar ruling by the Supreme Court

in Schriro v. Summerlin where the Court held its decision in Ring v. Arizona, 536

U.S. 584, 609 (2002) (applying Apprendi in death penalty context) was not

retroactive to cases on collateral review. 124 S.Ct. 2519, 2526 (2004). With this

18
Although this is not a case involving a challenge to the federal sentencing
guidelines, we note we have previously decided that Blakely v. Washington, 124 S.Ct.
2531, 2536-38 (2004), a case which applied Apprendi and invalidated Washington’s
sentencing guidelines scheme as violative of the Sixth Amendment, and which was
subsequently extended to the federal sentencing guidelines, see United States v. Booker,
125 S.Ct. 738, 746 (2005), is not retroactively applicable to cases on collateral review
which became final before Blakely was decided on June 24, 2004. See United States v.
Price, 400 F.3d 844 (10th Cir. 2005).

-30-
history it is clear that McCullah has not made “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). About this jurists of reason

could not debate. See Miller-El, 537 U.S. at 327.

VI. Conclusion

Accordingly, we VACATE the district court’s order denying McCullah’s

motion for new trial because it lacked jurisdiction to decide the motion, AFFIRM

the court’s denial of relief on the Brady and Napue claims and DENY a COA on the

Apprendi claim.

Entered by the Court:

Terrence L. O’Brien
United States Circuit Judge

-31-