United States v. HarringtonUnited States v. Harrington
- Reporters:
- Before:
- Mary M. Schroeder, Alfred T. Goodwin, Susan P. Graber
OPINION
SCHROEDER, Chief Judge:
Federal prisoner John Francis Harrington filed a “Motion for New Trial Based on Newly Discovered Evidence” under
As a preliminary matter, the government contends that we need not reach the merits of Harrington‘s motion for a new trial because the motion was untimely. Harrington‘s motion for a new trial was filed pro se after the three-year deadline imposed by
[1] Harrington‘s threshold argument is that the district court was constitutionally required to grant his request for the appointment of counsel in connection with his Motion for New Trial. He relies on Menefield v. Borg, 881 F.2d 696 (9th Cir. 1989). In Menefield, we held that, under California law, a motion for a new trial that was filed in the trial court before any appeal had been pursued was a “critical stage” of the proceeding to which the right of counsel attached. See id. at 698-99. We stated that, “at least in the absence of extraordinary circumstances, an accused who requests an attorney at the time of a motion for a new trial is entitled to have one appointed, unless the government can show that the request is made for a bad faith purpose.” Id. at 701. Therefore, we held that the defendant who had proceeded to trial pro se was entitled to appointed counsel in connection with his new trial motion. Id. at 698-99. In United States v. Del Muro, 87 F.3d 1078, 1080 (9th Cir. 1996) (per curiam), we applied the holding of Menefield to a federal new trial motion that was timely filed within seven days after the defendant‘s conviction, before any direct appeal. See
[2] The factual situations in Menefield and Del Muro are materially distinguishable from the one presently before us. In both of those cases, the defendant filed his new trial motion prior to filing a direct appeal. In this case, in contrast, Harrington filed his motion, denominated a
[3] Nor does any Supreme Court authority support the appointment of counsel here. In Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), the Supreme Court held that the right to counsel “extends to the first appeal of right, and no further.” There is no right to counsel for a collateral attack on a conviction. Id. Harrington‘s Motion for New Trial is in essence a collateral attack, because it was filed after his direct appeal was concluded. We hold that after the completion of the direct appeal of a federal conviction, appointment of counsel for a motion for a new trial is not constitutionally guaranteed. The decision whether to appoint counsel instead rests with the discretion of the district court.
[4] This holding is consistent with the holdings of other circuits that have decided the same issue. See United States v. Berger, 375 F.3d 1223, 1226 (11th Cir. 2004) (per curiam); Trenkler v. United States, 268 F.3d 16, 20-21 (1st Cir. 2001); United States v. Lee, 513 F.2d 423, 424 (D.C. Cir. 1975) (per curiam); United States v. Birrell, 482 F.2d 890, 892 (2d Cir. 1973) (per curiam). See generally Jonathan G. Neal, Note: “Critical Stage“: Extending the Right to Counsel to the Motion for New Trial Phase, 45 Wm. & Mary L. Rev. 783, 789-800 (2003) (compiling and discussing Rule 33 cases).
We therefore turn to the merits of Harrington‘s pro se
[5] To prevail on a
Any failure to discover the evidence regarding the crime scene and surrounding streets reflects a lack of due diligence on Harrington‘s part. The photographs and street map could have been obtained at any time. The evidence of the officers’ testimony at the preliminary hearing is not newly discovered, because Harrington was present at the preliminary hearing and his counsel obtained a cassette tape of that testimony during trial. It is unclear from the record whether the evidence of the officers’ testimony before the grand jury was newly discovered. Nevertheless, any inconsistencies between the officers’ testimony before the grand jury and their testimony at trial relate only to how the officers carried out surveillance during one of Harrington‘s sales of LSD. The inconsistencies impeach a portion of the officers’ testimony regarding one instance of surveillance, but do not render their testimony wholly incredible. See United States v. Davis, 960 F.2d 820, 825 (9th Cir. 1992), because the inconsistencies do not undermine the evidence that sales were made. The inconsistencies therefore are not material to the issues at trial. See id.
[6] Even if the new evidence could be considered marginally material, Harrington cannot show that a new trial would probably result in acquittal. See Kulczyk, 931 F.2d at 548-49; United States v. Kenny, 645 F.2d 1323, 1344 (9th Cir. 1981). There is significant evidence in the record implicating Harrington in LSD sales, including a recorded conversation in which Harrington was heard selling drugs to the government informant, the actual LSD sold by Harrington to the government informant, and the large quantities of LSD seized during a police search of Harrington‘s home. Accordingly, a new trial in this case, even with the evidence now proffered, probably would result in Harrington‘s conviction.
[7] The district court therefore did not abuse its discretion in denying Harrington‘s motion for a new trial. Nor did the district court abuse its discretion by declining to grant an evidentiary hearing. See United States v. Reyes-Alvarado, 963 F.2d 1184, 1188-89 (9th Cir. 1992).
AFFIRMED.