United States v. Herbert Anderson
712 F. App'x 383
| 5th Cir. | 2017Background
- Herbert Philip Anderson was convicted in 2010 of money laundering and participating in a drug‑trafficking conspiracy; his conviction was affirmed on direct appeal and certiorari was denied.
- Anderson filed a timely 28 U.S.C. § 2255 motion; the district court denied relief and this court granted a certificate of appealability on two issues: ineffective assistance of appellate counsel and whether the Government used material, perjured testimony.
- At trial the district court allotted 12 minutes of closing argument divided equally among three defendants; Anderson’s trial counsel requested and received an extra minute but made no further objection.
- On direct appeal appellate counsel argued abuse of discretion for the time limit, but the panel reviewed only for plain error because trial counsel did not preserve the objection. Anderson contends appellate counsel should have framed the issue as plain error and provided an offer of proof about what additional argument he would have made.
- Anderson also produced new evidence (a 2016 letter from witness Steven Adams, plus corroborating witness statements) suggesting Adams recanted trial testimony implicating Anderson and claims that the prosecutor coached Adams and promised leniency. This evidence was not before the district court.
- The Fifth Circuit affirmed denial of ineffective assistance (finding no reasonable probability the outcome on direct appeal would have differed) but granted Anderson’s motion to supplement the record and remanded for the district court to reconsider whether an evidentiary hearing on the false‑testimony claim is required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for failing to frame closing‑time claim under plain‑error and for not offering proof of additional argument | Appellate counsel should have argued plain error and supplied an offer of proof showing what additional closing arguments Anderson would have made, which could have made error "clear or obvious" | Trial counsel obtained the extra minute requested and made no further objection; even with proper framing, the time‑limit error was not beyond reasonable dispute | Denied — appellate counsel’s alleged deficiency did not prejudice Anderson; no reasonable probability the direct appeal result would have changed |
| Whether the Government knowingly used material, perjured testimony at trial | New evidence (Adams’ 2016 letter and corroborating statements) shows Adams recanted and that prosecutors knew of and coached false testimony, warranting an evidentiary hearing | Government argued district court correctly found no basis to conclude prosecutors knew testimony was false; opposed supplementation of record | Remanded — granted motion to supplement record and remanded to district court to determine if an evidentiary hearing on false‑testimony claim is required |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑prong ineffective assistance standard)
- Puckett v. United States, 556 U.S. 129 (error is not "clear or obvious" if subject to reasonable dispute)
- United States v. Bagley, 473 U.S. 667 (conviction must be set aside if there's a reasonable likelihood false testimony affected the jury)
- Williamson v. United States, 183 F.3d 458 (5th Cir.) (standards for reviewing § 2255 ineffective assistance claims)
- Summers v. Dretke, 431 F.3d 861 (5th Cir.) (treats unsupported recantations with skepticism)