Full opinion text
MEMORANDUM AND ORDER FREEDMAN, Senior District Judge. I. INTRODUCTION Acting pro se, Bernard Kiley, Sr. (“Kiley” or “petitioner”) has moved this Court to vacate, set aside, or correct his federal prison sentence under 28 U.S.C. § 2255 (“section 2255”). Kiley requests relief on the grounds that his convictions stemming from the robbery of an armored car resulted from violations of his Fourth, Fifth, and Sixth Amendment rights. The petitioner seeks a new trial or, in the alternative, additional discovery and an evidentiary hearing. The United States of America (“government”) opposes the motion. II. FACTUAL AND PROCEDURAL BACKGROUND The Court recites only those facts pertinent to Kiley’s section 2255 petition and reserves a more detailed discussion for later. For a fuller rendition, see United States v. Procopio, 88 F.3d 21 (1st Cir. 1996). A. The Berkshire Armored Car Robbery On April 9, 1991, three armed and masked individuals held up a Berkshire Armored Car (“BAC”) as it was being loaded in Pittsfield, Massachusetts. The robbers made off with $1.2 million in cash. Suspicious spending habits led law enforcement to the door of the petitioner, Bernard Kiley, as well as to Vincent Lattanzio, Donald Abbott, Francis Procopio, and Charles Gattuso. Among the search warrants obtained and executed, agents executing a search warrant at 79-81 Inter-vale Road in Brockton, Massachusetts (“Intervale search”) discovered a cache of firearms and disguises. Kiley’s section 2255 petition bases most of its claims on the legality of and circumstances surrounding this particular search. The Court will discuss the factual and procedural history of the Intervale search momentarily. For his part, a federal grand jury returned a superseding indictment charging Kiley with bank robbery, see 18 U.S.C. § 2113(a), conspiracy and interference with commerce by means of a bank robbery, see 18 U.S.C. § 1951, using a firearm during the commission of a violent crime, see 18 U.S.C. § 924(c)(1), money laundering, see 18 U.S.C. § 1956(a)(1)(B)®, aiding and abetting, see 18 U.S.C. § 2, and being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1). This Court severed the robbery charges from the firearms charges and ordered two separate trials. The government introduced the weapons and disguises seized during the Intervale search at both trials, in the robbery trial as evidence of a “criminal association” between Kiley and Lattanzio, and in the firearms trial as evidence of Kiley’s and Lattanzio’s possession of firearms while being convicted felons. Two separate federal juries convicted Kiley and Lattanzio of all the counts listed previously. On April 20, 1995, the Court sentenced Kiley to 45 years in prison and 5 years supervised release. The Court increased Kiley’s sentence under the Armed Career Criminal Act of 1984 (“ACCA”) for his possession of firearms, because he was previously convicted of a violent felony and two serious drug convictions. See 18 U.S.C. § 924(e). On appeal, the First Circuit affirmed the convictions. See generally Procopio, 88 F.3d 21. The Supreme Court denied Kiley’s writ of certiorari less than a year later. See Kiley v. United States, 519 U.S. 1138, 117 S.Ct. 1008, 136 L.Ed.2d 886 (Feb. 18, 1997). Kiley initially petitioned this Court to vacate his sentence pursuant to section 2255 on August 14, 1997, see Motion to Vacate Sentence (Doc. No. 2), but has since amended and supplemented his motion numerous times. B. The Intervale Search The surveillance and search of 79-81 Intervale Street, a house with apartments on each of its three floors, in Brockton, Massachusetts, is of particular relevance to this petition. Most of the following comes from testimony at both trials. Agents from the Federal Bureau of Investigation (“FBI”) and the Internal Revenue Service (“IRS”) placed Kiley under surveillance after several confidential informants implicated Kiley in the Pittsfield BAC robbery. On June 7, 1993, FBI Special Agent Gerald Downes (“Agent Downes”) submitted to this Court an affidavit and application for a warrant to search what Agent Downes claimed to be Kiley’s residence at 79 Intervale Road. The Court issued the warrant. On June 8,1993, a team of FBI and IRS agents went to 79-81 Intervale Road to execute the search warrant. The agents arrested Lattanzio outside of the house and entered the first floor, which was designated 79 Intervale Road, looking for Kiley. Once inside, the agents realized that the search warrant specified the wrong address, as another tenant was found inside that apartment. As a result of statements made to one of the agents, the search team proceeded up the back staircase to conduct a protective sweep of the apartments located upstairs. Stirred by shouts of “FBI,” Kiley fled out of the third floor apartment and down the front staircase, where he was arrested by an agent waiting outside of the house. With Lattanzio and Kiley both in custody, the agents delayed the start of their search as arrangements were made to obtain a new search warrant specifying the correct address, which was 81 Intervale Road. Agent Downes called IRS Agent Jessica Crocker, advising her that the search warrant needed to be changed to reflect the correct address. Crocker prepared a new affidavit and application and submitted them to this Court, which issued a new search warrant for 81 Intervale Road. Armed with a new search warrant, the agents searched 81 Intervale. During the search, agents seized weapons, disguises, and other paraphernalia, all of which included a Massachusetts State Police Uniform, a mold for a State Police badge, two pairs of handcuffs, a bullet proof vest, two rubber masks, a Chinese assault rifle and ammunition, two Glock 9mm pistols, and fake identifications cards with pictures of Kiley and Lattanzio on them. C. Kiley’s Motion to Suppress Items Seized During the Intervale Search Among other pretrial motions, Kiley moved to suppress the items seized from Intervale search and moved for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (requiring a hearing when the defendant makes a “substantial preliminary showing” that the person attesting to the affidavit underlying a search warrant “knowingly and intentionally, or with reckless disregard for the truth,” made a false statement). On April 19, 1994, this Court held a non-evidentiary hearing (“suppression hearing”) on the matter. To bolster its position regarding the legality of the Intervale search, the government submitted a sworn declaration from Agent Downes which stated: On June 7, 1993,1 applied for a warrant to search Bernard Kiley’s residence at 79 Intervale in Brockton for documentary evidence of the expenditure of the BAC robbery proceeds. I knew that Kiley resided in the duplex where 79-81 Intervale was located because the FBI surveillance team informed me that they had Kiley under surveillance for eight successive days immediately preceding June 8, 1993, and the surveillance showed that Kiley routinely entered and exited the duplex as if he resided there. I was also aware that Kiley and Lattanzio were preparing to commit another armed robbery. May 16, 1994 Memorandum and Order, at 36 n. 13 (Agent Downes’ Declaration under Oath). Throughout the suppression hearing, the government represented to the Court that the FBI conducted “around the clock” surveillance during the eight days prior to June 8,1993. On May 16, 1994, the Court ruled that the 81 Intervale search warrant was deficient, holding that no probable cause to search 81 Intervale existed, as “nothing in the affidavit supported] the assumption that the house was Kiley’s residence.” Id. at 37. The Court, however, found that the “good faith” exception to the exclusionary rule saved the evidence. See id. at 37-38, citing United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); see also Procopio, 88 F.3d at 28, quoting Leon, 468 U.S. at 923, 104 S.Ct. 3405 (“Leon protects good faith police reliance on a magistrate search warrant, even if the warrant later proves invalid, unless inter alia, the underlying affidavit is ‘so lacking in indicia of probable cause’ as to make reliance upon it ‘entirely unreasonable’ ”). Relying primarily upon Agent Downes’ Declaration under Oath, the Court held that evidence suppression was unwarranted, because “Agent Downes was merely negligent, not dishonest or reckless, in failing to include [this] FBI-obtained information in [the] affidavit” supporting the warrant application. See May 16, 1994 Memorandum and Order, at 38. The Court ruled that the evidence was admissible at trial and denied Riley's request for a Franks hearing. See id. at 34-38. The matter was settled until September 12, 1994, when the government disclosed numerous documents pursuant to the Jencks Act, including FBI Form 302 reports related to the surveillance of 79-81 Intervale Road (“Intervale reports”). The reports themselves described only four days worth of surveillance at 79-81 Inter-vale Road, occurring only during business hours. In addition, the reports indicated that Riley was seen only twice: the first time occurring on June 2nd, when he was seen helping Lattanzio remove a refrigerator, the other time on June 3rd, when he was seen leaving the house. Reports in hand, Riley moved for reconsideration of the suppression ruling and denial of Franks hearing, alerting the Court to discrepancies between the sporadic surveillance indicated in the newly disclosed surveillance reports and the “around the clock” surveillance alleged by Agent Downes in his Declaration under Oath and by the government in its representations to the Court. See Riley’s Exhibits, at 426-27 (Doc. No. 22) (Riley’s Motion for Reconsideration). Riley maintained that the reports prove that Agent Downes did not have information which he claimed to have, namely, that Riley resided at 81 Intervale. See id. at 427. Thus, Riley argued, the Court could not predicate its decision on the agents’ “good faith,” as the Court had in denying- Riley’s motion to suppress and motion for a Franks hearing. See id. In a ruling issued just before the start of trial, the Court denied Riley’s motion for reconsideration, stating that: the Court ... finds no reason to disturb its ruling regarding the search at 81 Intervale Street. In fine, Riley wants the Court to conclude that, because no report was completed by the government agent on June 5th, 6th, and 7th, no surveillance was undertaken. However, the Court finds Riley’s speculation too tenuous to countermand its earlier “good faith” determination. Sept. 19, 1984 Memorandum and Order, at 10. The fruits of the Intervale search being admissible, the government introduced those items at the robbery trial to show a criminal association between Riley and Lattanzio, and at the firearms trial to show their possession of firearms. As mentioned previously, the juries in both trials convicted Riley of all counts. D. Kiley’s Appeal On appeal, the First Circuit considered the legality of the Intervale search de novo and also found that the Leon good faith exception to the exclusionary rule applied. Procopio, 88 F.3d at 28. The First Circuit elaborated: In this instance, the [affidavit underlying the second search warrant] recited that agent Downes had advised that he was “at Bernard Riley’s address at 81 Inter-vale ____” Thus, the affidavit included the agent’s assertion that the address to be searched (81 Intervale) was that of suspect (Riley) as to whom probable cause had been shown; the only omission was the failure to explain how the agent — who had ample basis for the contention — knew that “81 Intervale” was “Kiley’s address.” Whether or not this is a defect in the application, it is hardly blatant, nor is there any suggestion (or basis for a suggestion) or actual bad faith. Thus, we conclude that Leon applies. Id. In his appellate brief, Kiley brought the discrepancies between the Intervale reports and the government’s representations of “around the clock” surveillance to the attention of the First Circuit. See Government’s Opposition to Motion, Exhibit B (Kiley’s Appellate Brief). The First Circuit rejected his argument. See Procopio, 88 F.3d at 28 (“Whether or not this is a defect in the application, it is hardly blatant, nor is there any suggestion (or basis for a suggestion) or actual bad faith.”) (emphasis added). Kiley now seeks to brim over the canyons of speculation with floods of newly discovered evidence that the government actually knew he resided at 50 Clarence Street in Brockton, Massachusetts, and not Intervale Road as the government represented. Kiley argues that he can show that the government obtained the warrant in bad faith, and asks this Court to grant him relief, including full discovery and an evidentiary hearing on the matter, as well as new trials on the robbery and firearms charges. Kiley also asks the Court to vacate his sentence or to resentence him without considering the ACCA. III. LEGAL STANDARDS A. Section 2255 Relief As a federal prisoner, Kiley may move to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, upon the grounds that (1) the Court imposed his sentence in violation of the Constitution or laws of the United States, (2) the Court lacked jurisdiction to impose his sentence, (3) his sentence exceeded the maximum authorized by law, or (4) his sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255; Knight v. United States, 37 F.3d 769, 772 (1st Cir.1994) (outlining grounds upon which federal prisoner may claim relief under 28 U.S.C. § 2255). Kiley brings numerous claims in his 254 pages of motions and memorandums, see Amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (“Kiley’s Amended Motion”) (Doc. No. 20), Reply to the Government’s Response (“Kiley’s Reply”) (Doc. No. 34), Motion for Leave to Supplement the Amended Motion (Doc. No. 35), and Motion for Leave to Reply to Government’s Response to Motion for Leave to Supplement the Amended Motion (Doc. No. 38), which he supports with no less than 616 pages of exhibits, see Appendix of Exhibits (“Kiley’s Exhibits”) (Doc. Nos. 21, 22). Although Kiley’s arguments are often entangled and intertwined, the Court will try its best to sort out and decipher the claims of which his filings provide sufficient notice. See Prou v. United States, 199 F.3d 37, 42 (1st Cir.1999); see also Raineri v. United States, 233 F.3d 96, 97 (1st Cir. 2000) (“The federal courts historically have been solicitous of the rights of pro se litigants.”). Kiley’s claims are predominantly constitutional, as he alleges that the government has failed or has continued to fail to disclose material and exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Kiley also asserts three constitutional claims alleging that he was improperly sentenced. These claims all appear properly raised in a section 2255 petition. See Knight, 37 F.3d at 772. The Court wearily eyes one of Kiley’s passing arguments involving a Fourth Amendment claim, since it is improperly raised in this petition. See Owens v. United States, 236 F.Supp.2d 122, 133-38 (D.Mass.2002). B. The Brady Framework A prosecutor’s duty to disclose evidence favorable to the accused is not absolute. Due process does not require the prosecutor “to deliver his [or her] entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial____” See United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). “If suppression of evidence results in constitutional error, it is because of the character of the evidence .... ” United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); see also Brady, 373 U.S. at 87, 83 S.Ct. 1194 (prosecutor’s good faith or bad faith in failing to disclose material evidence is irrelevant in deciding whether Brady violated). Due process ultimately requires the prosecutor to disclose only that evidence which is “material” to the accused’s guilt or punishment. See Brady, 373 U.S. at 87, 83 S.Ct. 1194. In Bagley, the Supreme Court explained that, evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is h probability sufficient to undermine confidence in the outcome. Bagley, 473 U.S. at 682, 105 S.Ct. 3375. For example, undisclosed evidence which reveals that the government introduced testimony at trial that it knew or should have known was perjured constitutes “fundamental unfairness” which undermines the outcome of a trial or proceeding. Agurs, 427 U.S. at 104 n. 7, 96 S.Ct. 2392, construing Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935). See also United States v. Gonzalez-Gonzalez, 258 F.3d 16, 21 (2001) (“[W]e think it is sufficiently analogous that the Brady error rule should apply to claims of knowing use of perjured testimony.”). In attempting to show a Brady violation, the petitioner need not demonstrate that disclosure of the undisclosed evidence would have resulted in acquittal. See Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). As the Supreme Court enunciated: The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is accordingly shown when the government’s evidentiary suppression “undermines the confidence in the outcome of the trial.” Id. (citations omitted). Second, the petitioner only has to show 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 425, 115 S.Ct. 1555. Third, this Court does not need to determine whether such suppressing material evidence was harmless, because a Bagley error is per se harmful. Id. at 436, 115 S.Ct. 1555. Lastly, the Court must examine the materiality of suppressed evidence collectively rather then individually. Id. at 436-37, 115 S.Ct. 1555. In sum, “[t]here are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the [government], either wilfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). C. Remedial Framework Throughout his section 2255 petition, Kiley requests numerous forms of relief, invoking a host of different legal standards. The Court will bear in mind the following standards when considering Kiley’s substantive claims. Cf. Bracy v. Gramley, 520 U.S. 899, 904-05, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). 1. Full Discovery “A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Id. at 904, 117 S.Ct. 1793. Discovery in section 2255 proceedings is available only “if, and to the extent that, the [Court] in the exercise of [its] discretion and for good cause shown grants leave to do so, but not otherwise.” R. 6(a) of Rules Governing Section 2255 Proceedings. See Bracy, 520 U.S. at 905-10, 117 S.Ct. 1793 (finding “good cause” for discovery where petitioner specifically alleged that judge who presided over his murder trial took bribes in other cases and that petitioner’s trial attorney, a former associate of the judge, may have rushed the petitioner’s case to trial to deflate suspicion surrounding bribe scheme). The Court must identity the “essential elements” of Kiley’s claims and then determine whether the factual allegations of which Kiley seeks discovery sufficiently satisfy the elements of those claims. See id. at 904-05, 117 S.Ct. 1793. If Kiley makes specific allegations that “show [a] reason to believe that [he] may, if the facts are developed, be able to demonstrate that he is ... entitled to relief, it is the duty of [this Court] to provide the necessary facilities and procedures for an adequate inquiry.” Id. at 905-10, 117 S.Ct. 1793, quoting Harris v. Nelson, 394 U.S. 286, 300, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969). 2. Evidentiary Hearing In determining whether Kiley is entitled to an evidentiary hearing, the Court looks first to the language of section 2255, which provides: Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. 28 U.S.C. § 2255. The burden of proving the need for an evidentiary hearing to resolve this section 2255 petition falls squarely on Kiley’s shoulders, see, e.g., United States v. McGill, 11 F.3d 223, 225 (1st Cir.1993), and he shoulders that burden by a preponderance of the evidence, see Myatt v. United States, 875 F.2d 8, 11 (1st Cir.1989). Where the record, motions, and supporting documentation demonstrate there to be a genuine issue of material fact, the Court must hold an evidentiary hearing. See United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir.1978); but cf. McGill, 11 F.3d at 226 (“That undisputed facts may plausibly be interpreted in different ways does not entitle an interested litigant to an evidentiary hearing.”). The language of section 2255 however, “does not strip the [Court] of all discretion to exercise [its] common sense.” Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473-(1962). An evidentiary hearing is unnecessary, if- the section 2255 petition is either facially inadequate or, though facially adequate, contains factual allegations that are conclusively refuted by files and records of the case. See Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir.1974). Accordingly, the Court will accept as true those factual allegations in Kiley’s petition that are supported by competent evidence which would be admissible at an evidentiary hearing. See Barrett v. United States, 965 F.2d 1184, 1195 (1st Cir.1992), quoting United States v. Aiello, 814 F.2d 109, 113 (2d Cir.1987) (“To'warrant plenary presentation of evidence, the application must contain assertions of fact that a petitioner is in a position to establish by competent evidence.”) and Dalli v. United States, 491 F.2d 758, 760 (2d Cir. 1974) (In determining whether a hearing is necessary, “the court looks primarily to the affidavit or other evidence proffered in support of the application in order to determine whether, if the evidence should be offered at a hearing, it would be admissible proof entitling the petitioner to relief.”). The Court need not accept as true those factual allegations that are eonclusory, inherently incredible, or refuted by facts in the record. See Shraiar v. United States, 736 F.2d 817, 818 (1st Cir.1984); McGill, 11 F.3d at 225 (“the [Court] must take many of petitioner’s factual averments as true, but the [Court] need not give weight to eonclusory allegations, self-interested characterizations, discredited inventions, or opprobious epithets”). The Court will test the adequacy of Kiley’s remaining “factual allegations by assuming arguendo their truth, and then assessing their sufficiency in light of the relevant constitutional standards and the record.” Moran, 494 F.2d at 1222. Because both of Kiley’s trials were conducted in the reviewing judge’s courtroom, the Court is also “at liberty to employ the knowledge gleaned during previous proceedings and make findings based thereon without convening an additional hearing.” McGill, 11 F.3d at 225. 3. Standards for New Trial The First Circuit has not definitively addressed whether “newly discovered evidence is a cognizable ground for obtaining a new trial” under section 2255. Barrett, 965 F.2d at 1194-95; cf. Grace v. Butterworth, 586 F.2d 878, 880 (1st Cir.1978) (“It may be assumed that a compelling claim for relief might be presented when newly available evidence conclusively shows that a vital mistake had been made.”); but see Cruz-Sanchez v. Rivera-Cordero, 835 F.2d 947, 948-49 (1st Cir.1987) (“it is not even clear that newly discovered evidence is a ground for section 2255 relief’). “At a minimum,” however, Kiley must “meet the conventional criteria for obtaining a new trial on the ground of newly discovered evidence.” Barrett, 965 F.2d at 1194-95. Accordingly, the Court turns to the jurisprudence in this circuit. In the ordinary situation governed by Fed.R.Crim.P. 33, the First Circuit expounded the test for granting a new trial based on newly discovered evidence: A motion for new trial on the basis of newly discovered evidence will ordinarily not be granted unless the moving party can demonstrate that: (1) the evidence was unknown or unavailable to the defendant at the time of trial; (2) failure to learn of the evidence was not due to lack of diligence by the defendant; (3) the evidence is material, and not merely cumulative or impeaching; and (4) it will probably result in an acquittal upon retrial of the defendant. United States v. Wright, 625 F.2d 1017, 1019 (1st Cir.1980). Thus, a defendant seeking a new trial on the basis of newly discovered evidence must satisfy the first three prongs of the Wright test and then show that “the evidence must create an actual probability that an acquittal would have resulted if the evidence had been available.” United States v. Sepulveda, 15 F.3d 1216, 1220 (1st Cir.1993) (emphasis added). This same “defendant-onerous” standard, Gonzalez-Gonzalez, 258 F.3d at 20, also governs motions for new trial based on newly discovered evidence that the government “unwittingly” used perjured testimony. See United States v. Huddleston, 194 F.3d 214, 221 (1st Cir.1999) (conviction “should stand unless the force of the newly discovered event (i.e., the fact and nature of the perjury) and the content of the corrected testimony are such that an acquittal probably would result upon retrial”) (emphasis added). The “actual probability of acquittal” standard tucked into the forth prong of the Wright test is inapplicable to two particular situations, however. See Gonzalez-Gonzalez, 258 F.3d at 21. The first involves situations where the government violates its disclosure obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See United States v. Josleyn, 206 F.3d 144, 151-52 (1st Cir.2000). Under such circumstances, a more “defendant-favorable” standard is in order. See id.,quoting Kyles, 514 U.S. at 434, 115 S.Ct. 1555 (a new trial is warranted where the government’s non-disclosure deprives the defendant of a “fair trial, understood as a trial resulting in a verdict worthy of confidence”). Hence, upon satisfying the first three prongs of the Wright test, the defendant must only show that there is a “reasonable probability that the missing evidence would have changed the result” of the trial. Gonzalez-Gonzalez, 258 F.3d at 22 (emphasis added) (quotations omitted). The second involves situations where the government knowingly uses perjured testimony at trial. Id. In such circumstances, upon satisfying the first three prongs of the Wright test and making a “colorable claim that the government knowingly used perjured testimony,” see id. at 22 n. 1, the standard is whether there is a “reasonable likelihood that the false testimony could have affected the judgment of the jury.” Id. at 22 (emphasis added). The First Circuit has pronounced these two standards of “reasonability” with the same inflection. See id. (“Although the Supreme Court has not described whether there is a difference between the ‘reasonable likelihood’ and ‘reasonable probability’ standards, we believe they are equivalent.”). “In the end, both standards are concerned with whether [the defendant] received a fair trial resulting in a verdict worthy of confidence.” Id. 4. Analytical Framework Before delving into the substantive claims involved, the Court pauses a moment to settle one preliminary, analytical issue. In his section 2255 petition, Kiley asserts a number of what he deems to be Brady claims. Kiley’s characterization of some of these claims as Brady claims, however, is a slight misnomer, as some are better labeled requests for discovery and an evidentiary hearing. Thus, the Court will place each claim into its appropriate categories, analyzing it under its respective framework. Accordingly, where Kiley argues that the government violated his right to due process by failing to disclose evidence that was available to the government and material to Kiley’s guilt or sentencing, Kiley asserts a traditional Brady claim. See Brady, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. These untimely disclosed documents, known actually to exist, include the Intervale surveillance reports as well as the Pittsfield Police Department reports which Kiley only recently requested and obtained. See Kiley’s Exhibits (Doc. No. 21), at 76-84, (Doc. No. 22), at 526-92; see also Kyles, 514 U.S. at 437, 115 S.Ct. 1555 (“the individual prosecutor has duty to learn of any favorable evidence known to others acting on the government’s behalf, including the police”). Likewise, where Kiley alleges certain evidence to exist, while lacking definitive proof that such evidence exists, Kiley makes only a request for discovery and an evidentiary hearing. See Black’s Law Dictionary 478 (7th ed.1999) (“discovery” is “[t]he act or process of finding or learning something that was previously unknown”). The Court cannot perform the fact-intensive analysis that Brady contemplates, see, e.g., Kyles, 514 U.S. at 441-54, 115 S.Ct. 1555, without the evidence actually before the Court. Thus, the Court will refrain from speculating what precise Brady materiality this evidence might have. The evidence for which Kiley requests discovery and an evidentiary, hearing includes the missing reports regarding the surveillance of 79-81 Intervale Road in Brockton, Massachusetts, any reports regarding the surveillance of 50 Clarence Street in Brockton, Massachusetts, any FBI 302 reports regarding interviews with Kerry Pope and Richard Faulkner, and any evidence or reports concerning any other suspects of the BAC robbery. Additionally, Kiley requests discovery of evidence identifying anyone suspected by law enforcement of participating in an allegedly similar armored car robbery occurring in West Springfield, Massachusetts, years after Kiley was jaded for the BAC robbery in Pittsfield. IV. DISCUSSION A. Issues Surrounding the Intervale Search As many of Kiley’s claims are intertwined, the Court will first examine the issue regarding Kiley’s residence in June of 1993, since many of Raley’s claims derive from his allegations that the government knew he resided somewhere other than 79-81 Intervale Road. Among other things, Kiley alleges that the government failed to fulfill its disclosure obligation under Brady by failing to disclose the Intervale surveillance reports at the time his motion to suppress and his motion for a Franks hearing were litigated. Kiley posits that had such a disclosure been made, then the result of that pretrial suppression hearing would have been different. Kiley’s argument is that the disclosure would have shown that the government lacked probable cause to search the Intervale location, which would have warranted suppression of the items seized there. Without that evidence, the government could not have established important links between Kiley and the crimes with which he was charged. Specifically, the government would not have been able to show a criminal association between Kiley and Lattanzio at the robbery trial, nor would the government have had firearms with which to charge Kiley of possessing at the firearms trial. Kiley’s ultimate argument is that he would have been acquitted of the robbery charges and there would have been no grounds upon which to charge him with possession of firearms had the government disclosed the Inter-vale reports at the suppression hearing. Closely related to the Brady claims concerning the Intervale reports, Kiley also postulates that the government affirmatively misled this Court and the appellate court reviewing his robbery and firearms convictions. Specifically, Kiley alleges that, at the time his Fourth Amendment claims were litigated, the government: (1) failed to disclose the Intervale reports which showed spot check surveillance at that location and (2) instead substituted Agent Downes’ misleading Declaration under Oath representing that the government conducted “around the clock” surveillance, (3) misrepresented to the Court the circumstances surrounding the Intervale surveillance, (4) knowingly used Agent Downes’ perjured testimony at the detention hearing, (5) failed to fulfill its obligation to correct misrepresentations to the Court and Agent Downes’ sworn testimony, and (6) failed to make disclosures about the surveillance which Kiley claims that the government conducted at 50 Clarence Street. Kiley now submits various affidavits and other documents as “newly discovered” evidence which he believes support his theory that the government knew he resided at 50 Clarence Street at the time of the Intervale search and acted in bad faith in obtaining, executing, and defending the Intervale search warrant before this Court and First Circuit. The government disputes the relevancy of this exercise, maintaining that this newly discovered evidence is irrelevant because the warrant was saved by the “good faith” exception to the warrant requirement, making the probable cause determination irrelevant. The Court observes, however, that the First Circuit upheld the validity of the Intervale search based, in part, upon the lack of blatant omissions in the second search warrant application and the lack of “any suggestion (or basis for a suggestion) of actual bad faith” on the part of the government. Procopio, 88 F.3d at 28. The government also complains that Kiley has already litigated these issues and is now precluded from doing so again. See Argencourt v. United States, 78 F.3d 14, 16 (1st Cir.1996) (2255 petitioner “not free to relitigate” issues already decided on direct appeal); United States v. Michaud, 901 F.2d 5, 6 (1st Cir.1990) (claims “decided on direct appeal ... may not be relitigated under a different label on collateral review.”). If Kiley is able to show grounds for discovery and an evidentiary hearing, then this section 2255 petition would prove to be his first full and fair opportunity to litigate the issues surrounding the Inter-vale search. As the following discussion elucidates, however, Kiley’s grounds for discovery and an evidentiary hearing are but a delicate pile of postulates, the more to which he adds, the more it waivers and unsteadies. As will soon become apparent, a soft breeze of logic blows his pile of suppositions over. B. Requests for Discovery and an Evidentiary Hearing 1. Newly Discovered Evidence The first affiant whom Kiley presents is Kerry M. Pope, a longtime friend. See Kiley’s Exhibits (Doc. 21), at 269 (Pope Aff.). Pope attests that,, in late April of 1993,' he and Richard Faulkner were arrested by the Boston Police for attempting to cash a fraudulent check. See id. at 270. Pope reports that during this arrest in late April of 1993, FBI agents interrogated him about his relationship with Kiley. See id. Pope claims that these unnamed FBI agents admitted to him in late April of 1993 that the FBI had placed Kiley’s residence at 50 Clarence Street under surveillance during April and May of 1993. See id. at 270-71. After being asked whether he knew anything about the 79-81 Inter-vale Road house, Pope attests that he told the agents that he knew nothing about the Intervale Road house, and reiterated that Kiley resided at 50 Clarence Street. Kiley also submits the affidavit of Richard Faulkner, another longtime friend. See Kiley’s Exhibits (Doc. No. 21), at 272-74 (Faulkner Aff.). Faulkner attests that he shared an apartment with Kiley on the third floor of 50 Clarence Street from late October of 1992 until Faulkner was arrested with Pope for attempting to cash a fraudulent check. See id. at 272. In paragraph 4 of his affidavit, Faulkner twice attests that this arrest occurred in late April of 1992; in paragraph 6 of his affidavit, he attests that this arrest occurred in late April of 1993. See id. at 272. Faulkner continues, stating that the FBI agents knew Kiley resided at 50 Clarence Street because they told him at that April 1993 interrogation that the FBI had placed the Clarence Street house under surveillance during the entire time Faulkner and Kiley lived there. See id. at 274. Faulkner also claims that “to the best of [his] knowledge,” Kiley resided at the Clarence Street house until Kiley was arrested in June of 1993. See id. at 273. Lastly, Kiley submits the laconic affidavit of Theresa Coffey, a “close and intimate friend” of Lattanzio. See Kiley’s Exhibits (Doc. No. 21), at 161 (Coffey Aff.). Coffey attests that she visited Lattanzio at 79-81 Intervale Road in May and June of 1993. See id. These visits included overnight stays. See id. She also says that she knew Kiley and visited him at his 50 Clarence Street apartment several times during May and June of 1993. Kiley argues that these affidavits, coupled with the sporadic surveillance indicated by the Intervale reports, prove that he resided at Clarence Street and that the FBI knew he resided there at the time it applied for the Intervale warrants. The Court finds that the evidence which Kiley submits and the conclusions he draws therefrom, while extensive, offer no inkling, suggestion, or inference that the government knew he lived at a place other than 79-81 Intervale Road. For the most part, the submitted affidavits lack credibility and are conclusory, internally inconsistent, speculative, irrelevant, and contradicted by facts in the record. See Shraiar, 736 F.2d at 818 (claims which are inherently incredible or whose basis contradicts facts in the record may be denied without a hearing). The following discussion halts whatever favorable spin Kiley attempts to place on these affidavits. First of all, the Court finds Pope’s story entirely incredible. Pope attests that he related information to FBI agents that he could not possibly have possessed at the time the alleged interrogation occurred, namely, the place of Kiley’s residence during the months subsequent to that very interrogation. The Court dismisses Faulkner’s story in the same vein, and again mentions that Faulkner’s affidavit is patently riddled with internal inconsistencies. The Court also finds Faulkner’s story irrelevant to the extent that any statement allegedly made to him by FBI agents regarding Kiley’s residence at Clarence Street during the FBI interrogation alleged to have occurred in August of 1993 is completely irrelevant in determining where the government believed Kiley to reside in early June of 1993. The Court notes that while Kiley has produced a Form 302 report regarding an FBI interrogation of Pope conducted on August 4, 1993, see Kiley’s Exhibits (Doc. No. 21), at 266-68 (Form 302 regarding Pope), Kiley has not come forward, nor has the government admitted to possessing, a similar report for the interrogation of Faulkner at that date. Pope makes no mention of this August interrogation in his affidavit; it is Faulkner who alleges in his affidavit to have been interrogated by the FBI in August. Frankly, these stories do not add up. With respect to Coffey, she is a witness who admits that her very presence in the apartment, by virtue of her intimate relationship with Lattanzio, causes other people to be absent from that very apartment. See Kiley’s Exhibits (Doc. No. 21), at 161 (Coffey Aff.) (“Occasionally, Vincent and I stayed [at the Intervale apartment] overnight for privacy while my daughters stayed elsewhere.”). Coffey’s affidavit provides insufficient information to establish her as a person likely to possess personal knowledge of the government’s awareness of Kiley’s residence. Cfi Fed. R.Evid. 602 (“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”); Barrett, 965 F.2d at 1195 (to warrant an evidentiary hearing, the petitioner must come forth with competent evidence). Given her association with Lattanzio, the mere statements that (1) she never saw Kiley at the Intervale apartment and (2) she only saw Kiley at Clarence Street, without more, are insufficient to rebut the evidence tending to show that Kiley lived at Intervale Road. Were the Court to assume that Pope’s and Faulkner’s affidavits are true to the extent that Pope and Faulkner believed that Kiley lived at 50 Clarence Street until he was arrested in June of 1993, see Myatt, 875 F.2d at 11, their affidavits are unhelpful to the specific issue of the government’s knowledge concerning Kiley’s residence in early June of 1993. Lattanzio’s father, the record owner of 79-81 Intervale Road, had not purchased the property until April 29, 1993, around the exact time during which these FBI interrogations are alleged to have occurred. See Kiley’s Exhibits (Doc. 21), at 70 (John J. Lattanzio Aff.). Faulkner’s affidavit corroborates testimony at trial that places Kiley in Arizona during that time. It is quite evident that Kiley could not reside at Intervale Road until after he returned from Arizona. Indeed, Pope and Faulkner most likely possessed personal knowledge of the place of Kiley’s residence before the Intervale search. Yet Kiley’s previous residences are logically irrelevant to the matter at hand, since the FBI only based its affidavits underlying the Intervale search warrant on surveillance at that location during the first week and a half of June 1993. Furthermore, Faulkner and Pope failed to attest that they were released from custody during this time. Thus, Pope and Faulkner fail to provide “foundational facts as to [their] personal knowledge” as well. See Barrett, 965 F.2d at 1195. In short, the Court finds that none of these offers of proof refute the fact that Kiley resided, or exhibited objective behavior which made him appear to reside, at 79-81 Intervale Road. Kiley’s briefs neglect to mention that Jo Putinjuano, the tenant who resided in the second floor apartment at 81 Intervale Road, testified at trial that she observed Kiley acting in a way consistent with that of a resident at the Intervale house: Q: Regarding the third floor there, did you see any tenants or any activity regarding the third floor during those first eight days of June? A: Just one that appeared to be sleeping over. I wasn’t sure if he was living there or not; I didn’t ask. Q: How many times did you see someone in the third floor apartment? A: Twice. Q: Do you know who that individual was? A: I just know him as Bernie. Kiley’s Exhibits (Doc. No. 21), at 177 (Testimony of Jo Putinjuano). Again, nothing Kiley offers contradicts this notion. Kiley seeks “to conduct broad-scale discovery in hopes of establishing his claim” that the government acted in bad faith with regard to the Intervale warrant, “and requests] what would ... amount to a full-scale evidentiary hearing on [the matter].” DeVincent v. United States, 632 F.2d 145, 146 (1st Cir.1980). The Court, however, refuses to entertain such a “fishing expedition.” Id. (denying evidentiary hearing in 2255 petition where petitioner failed to present proof of his allegations and relied upon mere speculation); Strickler, 527 U.S. at 286, 119 S.Ct. 1936 (“Mere speculation that some exculpatory material may have been withheld is unlikely to establish good cause for a discovery request on collateral review”). Simply put, the affidavits Kiley submits do not prove what he thinks they prove. Cf. McGill, 11 F.3d at 226 (“That undisputed facts may plausibly be interpreted in different ways does not entitle an interested litigant to an evidentiary hearing.”). Kiley’s evidence contradicts facts established in the record and his conclusions are extremely speculative. In the end, Kiley offers “no proof of his allegation” that the government knew he resided at 50 Clarence Street, DeVincent, 632 F.2d at 146, but is left holding the same, discrepant Intervale surveillance reports which two courts have already considered. See May 16, 1994 Memorandum and Order, at 37 (denying Kiley’s motion for reconsideration); Government’s Opposition to Motion (Doc. No. 29), Exhibit B (Kiley’s Appellate Brief pointing out the discrepancies between Intervale surveillance reports and Agent Downes’ sworn statements); Proco pio, 88 F.3d at 28 (rejecting all of Kiley’s grounds for appeal). The Court agrees with the government that Kiley is precluded from bringing this well-traveled claim before the Court once more. See Argencourt, 78 F.3d at 16; Michaud, 901 F.2d at 6. See also Owens, No. 236 F.Supp.2d 122, 133-38 (D.Mass.2002) (holding that section 2255 petitioner may not raise Fourth Amendment claims for which he or she has already had full and fair opportunity to litigate). In sum, the Court finds that Kiley’s claims regarding the Intervale search amount to no more than mere speculation, and he has failed to show good cause for additional discovery. See R. 6(a) of Rules Governing Section 2255 Proceedings. Kiley has also failed to convince the Court by a preponderance of the evidence that an evidentiary hearing is warranted. See Shraiar, 736 F.2d at 818; McGill, 11 F.3d at 225-26. Lastly, Kiley’s reliance upon the affidavits of longtime friends, without explanation of how the information they provided was “unknown or unavailable” to him at the time his Fourth Amendment issues were litigated, is insufficient to warrant a new trial. See Wright, 625 F.2d at 1019. Accordingly, the Court will deny Kiley’s request for discovery, an evidentiary hearing, and new trial with regard to all matters related to the Intervale search. 2. Allegations of Perjury and Misrepresentations to the Court As Kiley has not come forward with competent evidence tending to show that the FBI conducted surveillance at 50 Clarence Street, the ramifications to some of Kiley’s other claims are ominous. Kiley alleges that the government (1) relied on Agent Downes’ perjured testimony regarding the location and comprehensiveness of the FBI surveillance, (2) furthered that perjury with affirmative misrepresentations and misleading statements, and (3) failed to correct the testimony, misrepresentations, and statements before the warrant-issuing judge, trial judge, and appellate court after it became apparent that Agent Downes perjured himself. As previously noted, Kiley has shown no grounds to believe that the FBI conducted surveillance at 50 Clarence Street. Thus, any claims alleging that Agent Downes lied about the location of surveillance must fail. The second claim of perjury involving Agent Downes’ representations of the comprehensiveness of the surveillance (i.e. “around the clock” surveillance at 79-81 Intervale Road) and the government’s reassertions of the same, requires slightly more discussion. Kiley interprets the spot-check surveillance indicated by the Intervale surveillance reports to contradict Agent Downes testimony that the FBI partook of regular surveillance during the eight days prior to the Intervale search. Issues of relitigation aside, see Argencowrb, 78 F.3d at 16, the element of time once again works against Kiley’s interpretation of the facts to reveal the flaws of his logic. Kiley concedes, as he must, that the Inter-vale surveillance reports were transcribed after Agent Downes’ affidavit was submitted to the Court to secure the first search warrant and all but one of the Intervale reports were definitely transcribed after the Intervale search occurred. Agent Downes testified at both trials that he himself was not involved in the surveillance, and it is obvious that he relied upon some source other than the Intervale reports to obtain information about the Intervale surveillance. In his Declaration Under Oath, Agent Downes stated that I knew that Kiley resided in the duplex where 79-81 Intervale was located because the FBI Surveillance team informed me that they had Kiley under surveillance for eight successive days immediately preceding June 8, 1993, and the surveillance team showed that Kiley routinely entered and exited the duplex as if he resided there. See May 16, 1994 Memorandum and Order, at 36 n.13 (Agent Downes’ Declaration under Oath) (emphasis added). Not once did Agent Downes say he based his knowledge of the surveillance upon the actual reports. Where it is apparent to the Court that law enforcement (both Agent Downes and the government) has played by the book, see Bracy, 520 U.S. at 909, 117 S.Ct. 1793 (“Ordinarily, we presume that public officials have properly discharged their official duties”) (quotations and citations omitted), absent a plausible suggestion that Agent Downes perjured himself and that the government relied on that peqjury, these claims must fail as well. Compare id. (presumption of official properly discharging duty rebutted by defense’s highly specific allegations). There is absolutely no suggestion other than Kiley’s fantastic speculation that the government used false testimony and “contrived [his] conviction through the pretense of a trial.” Mooney, 294 U.S. at 112, 55 S.Ct. 340. Without an untruth, there can exist no perjury, and Kiley’s lack of substantive grounds for perjury means he is unentitled to discovery. See Bracy, 520 U.S. at 904-05, 117 S.Ct. 1793. Kiley has also failed to show a genuine issue of material fact which necessitates an evidentiary hearing. See McGill, 11 F.3d at 225. Lastly, because the Court finds there to be neither a colorable claim of perjury, see Gonzalez-Gonzalez, 258 F.3d at 22 n. 1, nor any,possibility that an acquittal would result upon retrial, see Huddleston, 194 F.3d at 221, the Court will deny Kiley a new trial as well. 3. West Springfield Armored Car Robbery Kiley’s next discovery request draws the Court’s attention to an undated newspaper article in the Boston Herald describing a subsequently occurring robbery of $1.6 million from the BAC vault in West Springfield, Massachusetts. See Kiley’s Exhibits (Doc. No. 22), at 525. Kiley argues that this article, along with testimony at trial and some recently obtained police reports, show that the government failed to disclose material, exculpatory evidence. See Brady, 373 U.S. at 87, 83 S.Ct. 1194. Kiley first points an eager finger at the alleged similarities between the Pittsfield BAC robbery and a robbery at the West Springfield BAC vault occurring on May 2, 1997. The similarities Kiley notes between the two robberies include the facts that: 1. Both robberies involved the early morning run between the Pittsfield and West Springfield vaults. 2. The BAC guards on duty during both robberies left the armored car they were loading outside, unattended, and filled with money at the BAC depot, in serious breach of BAC security procedures. 3. The robbers in both robberies appear to have been given inside information by BAC employees. Kiley links these similarities to testimony at trial in which Allan Mongeon, one of the BAC guards on duty, recounted hearing one of the robbers calling another “Chuck” during the course of the robbery. Kiley continues his detective work by postulating that the “Chuck” identified in recently obtained Pittsfield Police Department reports and the “Chuck” involved in the robbery are one in the same. What Kiley dubs as distinct markings and the true perpetrator’s calling card, however, are too generic for the Court to find a modus operandi at work here. The Boston Herald article offers the following, telling details of the West Springfield BAC robbery: Authorities say thieves sneaked into the West Springfield yard of Berkshire Armored Car Services on May 2 just before dawn. Tipped to the cash delivery by a security guard and furnished with keys, they opened up an armored car, unloaded the cash, and then set off a smoke bomb inside. Instead of creating a distraction, however, the smoke bomb actually alerted workers to the theft. Kiley’s Exhibits (Doc. No. 22), at 525 (Boston Herald article). The differences between the robberies speak for themselves. Enlightening is fact that no witness to the West Springfield robbery reported seeing firearms; the article only mentions that no shots were fired during the course of the robbery. See id. In contrast, the Pitts-field BAC robbery was conducted at gunpoint. Granting Kiley’s motion for discovery and an evidentiary hearing would only perpetuate a wild goose chase, which is something this Court is unwilling to do. As will soon become more apparent after the Court discusses the strong direct evidence introduced against Kiley, see Procopio, 88 F.3d at 31, the government’s nondisclosure of information regarding the West Springfield BAC- robbery could not have undermined -the confidence in the outcome of Kiley’s robbery trial. See Bagley, 473 U.S. at 682, 105 S.Ct. 3375. Therefore, the Court will deny Kiley’s request for discovery, see Bracy, 520 U.S. at 904-05, 117 S.Ct. 1793, an evidentiary hearing, see McGill, 11 F.3d at 225, and a new trial, see Wright, 625 F.2d at 1019, regarding this matter as well. C. Pure Brady Claims Kiley alleges that the government violated Brady numerous times by failing to disclose material evidence which it had in its possession. This evidence includes a 118-page file from the Pittsfield Police Department (“PPD”) containing information about the investigation of the Pitts-field BAC robbery conducted by various local law enforcement agencies. Kiley obtained these records pursuant to a request under the Massachusetts Public Records laws, Mass. Gen. Laws ch. 66, § 10(a). 1. Ware Report The first document to which Kiley so excitedly alludes is the April 10, 1991 report of Massachusetts State Trooper Christopher D. Ware (‘Ware report”). See Kiley’s Exhibits (Doc. No. 22), at 528. The Ware report recites the details of a conversation Trooper Ware had with a person (the “informant”) who arrived in a car later found to be registered to Colin Cadorette. This informant stated that he was a former employee at BAC who once worked with a person known to him only as “Chuck.” Apparently, Chuck was based out of the West Springfield vault. On many occasions a couple of years prior to the Pittsfield BAC robbery, Chuck remarked to the informant how easy it would be to take down the Pittsfield BAC vault, given its minimal security. The informant related to Trooper Ware that he was under the constant impression that Chuck was waiting for the informant to reciprocate interest in planning a robbery. Trooper Ware also observed that the informant emitted “a strong odor of an alcoholic beverage.” There is another PPD report of Sargeant Harold E. Finn, Jr., reciting that he and Officer Murphy backed up Trooper Ware during the meeting with the informant. See id. at 529. Kiley deems the Ware report to be material and exculpatory material under Brady. See Brady, 373 U.S. at 87, 83 S.Ct. 1194. Kiley notes that Allan Mongeon, one of the guards on duty during the robbery, testified at trial that he heard one of the robbers refer to another as “Chuck.” At trial, Kiley tried to show that Chuck the robber was Charles Gattuso, the co-conspirator who opted to cooperate with the government. The government tried to rebut this inference by pointing out that Mongeon used to work with Gattuso, knew him well, and would have easily recognized his voice. Kiley now claims that suppressing the Ware report prevented him from talking with Mr. Cadorette and investigating this other suspect, effectively precluding his defense. The government attacks Kiley’s claim along two fronts. First, the government maintains that this report was disclosed to Kiley at trial. Second, the government also maintains that even if this report was used at trial, the jury would have convicted him nonetheless. See Procopio, 88 F.3d at 30 (“against Kiley, the evidence was strong”). Although persuaded by the government’s first argument, the Court will leave the second argument for discussion in conjunction with Kiley’s other Brady claim below. See Kyles, 514 U.S. at 436-37, 115 S.Ct. 1555 (cumulative impact of suppressed evidence is one aspect of materiality inquiry). Kiley submits an affidavit from his trial attorney, Attorney Stewart T. Graham, Jr., attesting to the fact that Attorney Graham does not recall ever seeing these materials and does not now* have them in his possession. See Kiley’s Exhibits (Doc. No. 22), at 599-602 (Graham Aff.). Kiley submits an affidavit from Lattanzio’s trial attorney, Attorney Kevin G. Murphy, attesting to the same. See Kiley’s Reply (Doc. No. 34), Exhibit 1 (Murphy Aff.). Neither attorney alleges that the government actually failed to disclose the Ware report, but it is significant that neither indicated any knowledge of this report when presenting their cases at trial. See Smith v. Sec’y of NM Dept. of Corrections, 50 F.3d 801, 829-30 (10th Cir.1995) (“perhaps the most highly probative evidence relating to” whether the report was disclosed “is the conspicuous absence of any cross-examination of [a certain witness,] on the matters contained in [the] report, matters that were extremely relevant to [the defendant’s] defense”). These affidavits alone, however, do not prove that the Ware report was never disclosed, especially in light of the three documents the government submits. The government has produced the very same Ware report which Kiley holds out as “newly disclosed,” except the government’s version is stamped as Jenkens Act material J01199 (Ware report) and 01200 (accompanying vehicle registration inquiry). See Government’s Opposition (Doc. No. 29), Exhibits B and C. The government also provides a copy of a September 12, 1994 letter informing Kiley’s trial counsel that the government was disclosing Jencks Act material numbered J00001 through J01406. Needless to say, the Ware report falls squarely within the range of disclosed documents. Lastly, the government also points to one of Kiley’s pretrial motions, which cites Jencks Act material stamped J01242, filed on September 16, 1994, implying that Kiley received all documents numbered lower than J01242. These documents as a whole make it appear that the government disclosed the Ware report before trial. This inference is reinforced by the fact that, after having received consecutively numbered documents of Jencks Act importance, neither Kiley’s attorney nor the attorneys for the other two defendants ever complained to the Court of incomplete disclosure with respect to the Jencks Act material, something at least one of the three attorneys surely would have done if documents were missing. The Court is satisfied that the government fulfilled whatever obligation the government had to disclose the Ware report. 2. Other PPD Reports Riley submits numerous other documents he received from the PPD. After careful review of each one of the reports Kiley submitted, see Kiley’s Exhibits (Doc. No. 22), at 526-92, the Court finds that each police document contains one of three types of information. The first type includes information already disclosed and known to Kiley at trial. The Court finds this evidence merely cumulative and, therefore, cannot serve as the basis of a Brady claim. See United States