* Pursuant to 5 TH C IR . R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 96-50897

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

VERSUS

ROY MARION JONES,

Defendant-Appellant

Appeal from the United States District Court

For the Western District of Texas

(A-94-CV-222-JN)

February 20, 1998

Before JOLLY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM: *

I.

Facts & Procedural History

Appellant, Roy Marion Jones, fled the United States after his

April 6, 1983, indictment for conspiracy to import marijuana.

Jones was captured and jailed in Colombia on July 29, 1983, where2

he was living under an assumed name. In November, 1983, the United

States sought Jones’ extradition. Jones was subsequently convicted

in Colombia, resulting in a term of imprisonment there. Jones’

sentence in Colombia was commuted on January 22, 1988, upon

condition of his leaving the country, and on November 22, 1990, he

was deported to the United States and arrested upon his arrival in

Miami. Jones was tried and convicted on April 25, 1991, of

conspiracy to import and conspiracy to distribute marijuana. The

District court sentenced Jones to consecutive five years terms for

each count. Apparently, still feeling the itch to be free, Mr.

Jones has filed no less than four appeals with this Court, two of

which have been resolved on the merits, this being the fourth.

Both of the previously adjudicated appeals presented th e same or

similar questions by different methods.

The first appeal in 1991 was a direct appeal from his

conviction, wherein Mr. Jones argued that he was denied a speedy

trial, that the evidence was insufficient to convict him and that

t he district court abused its discretion in sentencing him to

consecutive terms. This Court determined all of those issues

against Mr. Jones. United States v. Jones

, No. 91-8399 (5th Cir.

March 10, 199 2)(unpublished). Thereafter, on June 11, 1992, Mr.

Jones filed in the district court a Motion to Correct or Reduce

Sentence, purportedly under Fed. R. Crim. P. 35, claiming that the

evidence di d not support his conviction and that his consecutive2 Brady v. Maryland

, 373 U.S. 83 (1963), the landmark Supreme Court

case establishing the prosecutorial duty to disclose exculpatory evidence

to the defense.

3 sentences were an abuse of discretion. That motion was summarily

rejected by the district court, reconsidered under the then recent

Supreme Court decision in Doggett v. U.S.

, 505 U.S. 647 (1992) and

rejected again. On appeal this Court again rejected Mr. Jones’

arguments finding that Fed. R. Crim. P. 35 was an inappropriate

vehicle for challenging the merits of one’s conviction and that the

district court did not abuse its discretion in sentencing Mr. Jones

to consecutive sentences. United States v. Jones

, No. 92-8411 (5th

Cir. Oct. 25, 1993)(unpublished).

On March 30, 1994, Mr. Jones filed a Mo tion to Vacate, Set

Aside or Correct Judgment under 28 U.S.C. § 2255 claiming for the

third time that his sente nce was invalid and for the second time

that he had been denied the right to a speedy trial. The district

court denied Mr. Jones § 2255 petition. Mr. Jones appealed that

denial on September 11, 1995, which appeal was dismissed for

failure to pay the filing fee. United States v. Jones

, No. 94-50679

(5th Cir. Oct. 28, 1994)(unpublished).

The four th appeal, with which we are presently concerned,

started life on August 2, 1995, as a Motion to Present New Evidence

for Reconsideration. By that Motion for Reconsideration Mr. Jones

presented three old issues (speedy trial, insufficient evidence to

convict, and invalid sentence) and a new Brady issue. 2 The4

district court dismissed Jones’ Motion for Reconsideration, and

this appeal followed.

On appeal this Court treated Jones’ Motion for Reconsideration

as a second § 2255 petition subject to the constraints of Rule 9(b)

of the Ru les Governing § 2255 Proceedings regarding successive

petitions. United States v. Jones

, No. 95-50715 (5th Cir. April 5,

1996). This Court held that the district court and this Court

could not dismiss Jones’ second § 2255 petition under Rule 9(b),

because Jones’ had not been given notice of the possibility of

dismissal. Therefore, this Court remanded the matter to the

d istrict court so that the district court might review Jon es’

second § 2255 petition under Rule 9(b).

On remand the district court gave Jones notice that his second

§ 2255 petition might be dismissed. Thereafter, the district court

found that the issues of speedy trial, sufficiency of evidence to

convict and sentencing should be dismissed, because they had been

previously adjudicated. Finally, the district court found that,

even if Jones could show cause why he did not raise the Brady issue

in his first § 2255 petition, no prejudice resulted from the

government’s alleged Brady violation, and therefore, Jones’ second

petition must be dismissed en toto under Rule 9(b) and McCleskey v.

Zant

, 499 U.S. 467, 489-96, 111 S. Ct. 1454, 1467-1471 (1991)(no

abuse of § 2255 procedure where petitioner can show cause for

failure to assert error in prior petition and p rejudice from3 Jones has made this argument twice already, and his petition for

panel rehearing and suggestion for rehearing en banc on the COA issue were

both denied.

5 alleged error). Jones appealed the dismissal and this Court

granted a certificate of appealability under the Antiterrorism and

Effective Death Penalty Act on the Brady issue only.

I.

LAW & ANALYSIS

A.

Issues for Review

Initially, there is a question about what issues are properly

before this Court. The government argues that only the B rady issue

is properly before this Court. Jones argues that this Court

improperly issued a certificate of appealability limiting review to

the Brady issue, and therefore the Court also should determine

whether the other three issues (s peedy trial, sufficiency of

evidence to convict and validity of consecu tive sentences) were

properly dismissed under Rule 9(b). 3

Whe ther this Court should have issued a certificate of

appealability or a certificate of probable cau se is irrelevant.

Regardless of the method used, appellate review in this case was

properly limited to the Brady issue. This Court on direct appeal

has already determined the issues of speedy trial and sufficiency

of evidence to convict. United States v. Jones

, No. 91-8399 (5th

Cir. March 10, 1992)(unpublished). Likewise, this Court has6

already determined that Jones’ sentence was appropriate by

affirming the district court’s denial of Jones’ motion under Fed.

R. Crim. P. 35. United States v. Jones

, No. 92-8411 (5th Cir. Oct.

25, 1993)(unpublished ). Therefore, the B rady issue is the only

issu e raised by Jones’ second § 2255 petition that has not been

previously determined by this Court on the merits.

B.

Brady Issue

The crux of Jones’ argument is that the government failed to

inform the defense that one of its key witnesses, Robert Nestoroff,

was under investigation for conspiracy to obstruct justice and

perjury with respect to criminal investigations. Since this B rady

issue is raised in Jones’ second § 2255 petition, he must survive

the requirements of Rule 9(b) of the Rules Governing § 2255

Proceedings. Rule 9(b) requires the district court to determine

whet her second or successive § 2255 petitions raising new and

different grounds for relief constitute an abuse of the procedure.

Successive writs raising new and different grounds for relief are

not an abuse of the procedure, if the petitioner can show cause for

failing to assert the new ground for relief in the prior petition

and that the alleged e rror prejudiced his defense. M cCleskey v.

Zant , 499 U.S. 467, 489-96, 111 S. Ct. 1454, 1467-1471 (1991).

The district court found that, even if Jones could show cause

why he did not raise this issue in his first § 22 55 petition, no7

pr ejudice resulted from the alleged B rady violation, because the

investigation of Nestoroff did not start until long after Jones’

trial. However, in making this ruling the district court accepted

the magistrate’s mistaken belief that Jones’ was tried in 1983. In

fact, Jones was indicted in 1983, but his trial took place on April

22-25, 1991. Nestoroff was notified on September 10, 1992, that he

was a target of a grand jury investigation in the Southern District

of Florida. Although the district court was clearly wrong about

the timing of Jones’ trial in relation to the grand jury

investigation of Nestoroff, there is no proof that the government

knew of Nestoroff’s illegal activities pr ior to or during Jones’

trial. As the district court properly noted, B rady does not

require the disclosure of exculpatory evidence which does not yet

exist. However, the fact that the grand jury investigation of

Nestoroff began less than eighteen months after Jones’ conviction

would at least support an inference that the government knew of

Nestoroff’s illegal activities well before that time and perhaps

even before Jones was convicted.

A ssuming that the government knew of Nestoroff’s cr iminal

a ctivity before Jones’ trial, that information would have bee n

relevant only for purposes of impeaching Nestoroff’s testimony.

“When the ‘reliability of a given witness may well be

determinative of guilt or innocence,’ nondisclosure of

evidence affecting credibility falls within th[e] general

rule [of Brady ]. We do not, however, automatically

require a new trial wh enever ‘a combing of the

prosecutors’ files after the trial has disclosed evidence4 The facts as alleged by the government and accepted by the jury were

that Jones was being investigated as part of a larger investigation of an

a ir smuggling ring. In early December, 1982, Agent Nestoroff used an

informant in the airplane chartering business, Ayla Schbly, to acquire the

right to afix a tracking device to an airplane which would then be offered

to the suspected drug smugglers for use in their smuggling operation. On

8 p ossibly useful to the defense but not likely t o have

changed the verdict ...’ A finding of materiality of the

evidence is required under Brady

... A new trial is

required if ‘the fal se testimony could ... in any

reasonable likelihood have affected the judgment of the

jury ...’”

United States v. Bagley , 473 U.S. 667, 677, 105 S. Ct. 3375, 3381

(1985), quoting Giglio v. United States

, 405 U.S. 150, 154, 92 S.

Ct. 763, 766 (1972)(citations omitted). Therefore, assuming a

Brady violation here, it avails Jones nothing unless Nestorof f’s

loss of credibility is reasonably likely to have a ffected the

judgment of the jury against Jones.

As it turns out, a careful reading of the trial transcript

reveals that Nestoroff’s testimony was almost entirely redundant,

and simply reiterated parts of the prior testimony of the

government’s key witness, Ri chard Braziel, the Drug Enforcement

Administ ration Agent who headed the investigation of Jones. In

fact Nestoroff’s testimony is wholly unnecessary to link Jones to

the airplane carrying the drugs from Mexico. That link was

established by Braziel’s voice identification of Jones as the pilot

of the aircraft, which Jones abandoned upon landing in Killeen,

Texas, and by the extrinsic evidence that Jones’ fingerprints were

found in the airplane. 4 We cannot say that any prejudice resultedDecember 18, 1982, Agent Braziel went to Gant aviation to look for the

plane, only to find it was gone and that Jones’ green and white pickup was

parked outside Gant aviation. On the evening of December 20, 1982, the

tracking device triggered an alarm at a monitoring station and the plane

showed up on radar as being off the coast of Texas, inbound from Mexico.

Agents alit in their own chase aircraft and began a pursuit in the dark;

none of the aircraft had their lights on. Agent Braziel overheard portions

of the radio conv ersation between the pilot of the suspect airplane and the

ground crew. Braziel identified the voice of the pilot as Jones.

E ventually, Braziel spoke directly with Jones, who responded to “Hey, Roy”.

Eventually, Jones landed the aircraft at Killeen Airport. The chase team

of three aircraft landed immediately behind Jones, but by the time they

r eached the aircraft, Jones had abandoned it, filled to the brim with

marijuana. Jones fled to Colombia. At trial, Braziel’s testimony alone

was sufficient to establish that Jones was the pilot of the aircraft loaded

with marijuana.

9 from Jones not being able to impeach Nestoroff’s credibility, when

Braziel’s testimony alone was sufficient to establish Jones’ guilt.

Therefore, any error by the magistrate and district court regarding

the timing of Jones’ trial and the investigation of Nestoroff is

harmless, given the correctness of the magistrate’s finding that

“even if Nestoroff’s testimony had been excluded , the other

evidence of guilt is more than adequate to support Jones’

conviction.”

III.

CONCLUSION

It should be exceedingly clear that the issues of speedy

trial, sufficiency of the evidence to convict and consecutive

sentences forever have been resolved on the merits and cannot form

the basis for an y subsequent motions or petitions from Jones,

barring some change in the law which would entitle him to relief.

Even assuming that Jones on remand could show a Brady violation,10

that Brady violation would not entitle Jones to relief because

Nestoroff’s testimo n y could be impeached or excluded entirely

without affecting the integrity of the verdict. Therefore, we

affirm.

AFFIRMED.