The opinion of the court was delivered by: WILLIAM STIEHL, Senior District Judge
This matter is before the Court on defendant's pro se motion
for new trial based on newly discovered evidence. The defendant
asserts that the several of the government's witnesses at his
trial testified falsely, and that he should, therefore, be
entitled to a new trial under the provisions of Fed.R.Crim.P.
Under Federal Rule of Criminal Procedure 33, a district court
may grant a new trial on the basis of newly discovered evidence
within 3 years of the verdict or finding of guilt, that is within
three years of conviction. Mankarious v. United States,
282 F.3d 940, 945 (7th Cir. 2002). Defendants cannot not use
28 U.S.C. § 2255 to circumvent Rule 33's time limit, See Guinan v.
United States, 6 F.3d 468, 470 (7th Cir. 1993), nor can they use
Rule 33 to circumvent the collateral review rules of § 2255,
Ruth v. United States, 266 F.3d 658, 660 (7th Cir. 2001);
see also United States v. Evans 224 F.3d 670 (7th Cir.
2000) (holding that "any post judgment motion in a criminal
proceeding that fits the description of § 2255 ¶ 1 is a motion
under § 2255." Id. at 672.)
Here, defendant's motion is filed several years too late.
Hawkins was found guilty on May 21, 1992 (nearly thirteen years
ago) by a jury on charges that he conspired to distribute and possess with intent to distribute cocaine and marijuana in
violation of 21 U.S.C. § 846 (Count 1), possession with intention
to distribute and distribution of cocaine in violation of
21 U.S.C. § 841(a)(1) (Count 2), engaging in a continuing criminal
enterprise in violation of 21 U.S.C. § 848 (Count 3), and
interstate commerce in aid of racketeering in violation of
18 U.S.C. § 371 (Count 4). The defendant was sentenced to a total
term of imprisonment of 420 months. Hawkins' conviction on Count
1, the conspiracy count, was overturned on appeal in an
unpublished opinion, see United States v. Hawkins, 139 F.3d 902
(table), 1998 WL 104627 (7th Cir. 1998), and the case was
remanded for re-sentencing. On remand, the Court sentenced
petitioner to a prison term of 383 months. Petitioner again
appealed and the sentence and conviction were affirmed in a
second unpublished opinion, See United States v. Hawkins,
182 F.3d 923 (table), 1999 WL 402414 (7th Cir. 1999).
Pursuant to Rule 33, a motion for new trial based on newly
discovered evidence may only be filed within three years of the
verdict. That is not within three years of the finality of his
conviction, as the defendant would contend. Clearly, this motion
is nearly ten years too late, and the Court is without
jurisdiction under Rule 33 to consider it.
Moreover, even if it were timely filed, the motion is based on
assertions that the government committed, inter alia, violations
of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United
States, 405 U.S. 150 (1972), by: knowingly putting on false
testimony at trial; that trial counsel did not investigate
information that the government's witnesses wanted to recant
their testimony; and, that the government engaged in
prosecutorial misconduct by giving government witnesses
undisclosed "favors." These are, by their very nature, claims
that "fit the description of a § 2255 motion," Ruth,
266 F.3d at 660, and therefore would have to be brought in a § 2255 action. However, defendant has had several bites at
the § 2255 apple, but has not received leave of the Court of
Appeals to file a successive § 2255 petition. Under § 2255, "a
second or successive motion must be certified as provided in
section 2244 by a panel of the . . . court of appeals. . . ."
Accordingly, defendant's motion for new trial pursuant to Rule
33 is DISMISSED for lack of jurisdiction. The Clerk of the
Court is DIRECTED to return the exhibits submitted by defendant
in support of the motion.
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