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NOT FOR PUBLICATION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

3 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