United States v. Harrington ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-30413
Plaintiff-Appellee,
v.  D.C. No.
CR-94-00455-JET
JOHN FRANCIS HARRINGTON,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Jack E. Tanner, Senior Judge, Presiding
Submitted January 12, 2005*
Seattle, Washington
Filed June 6, 2005
Before: Mary M. Schroeder, Chief Judge,
Alfred T. Goodwin, and Susan P. Graber, Circuit Judges.
Opinion by Chief Judge Schroeder
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
6313
UNITED STATES v. HARRINGTON 6315
COUNSEL
John F. Harrington, pro se, Taft, California, defendant-
appellant.
Ronald J. Friedman, Assistant United States Attorney, Seattle,
Washington, for the plaintiff-appellee.
OPINION
SCHROEDER, Chief Judge:
Federal prisoner John Francis Harrington filed a “Motion
for New Trial Based on Newly Discovered Evidence” under
Federal Rule of Criminal Procedure 33, after he had unsuc-
cessfully pursued a direct appeal and a habeas corpus petition.
Harrington had been convicted of three counts of distribution
6316 UNITED STATES v. HARRINGTON
of LSD and one count of possession of LSD with an intent to
distribute. Harrington appeals pro se the district court’s order
denying his “Motion for Appointment of Counsel” in connec-
tion with that motion for a new trial. We hold that he was not
entitled to appointed counsel because his motion was filed
after his direct appeal, and thus was the equivalent of a collat-
eral attack for which counsel is not appointed as of right. We
also affirm, on the merits, the denial of Harrington’s motion
for a new trial.
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 Federal Rule of Criminal Procedure 33, as
amended December 1, 1998. The amendment became effec-
tive the day before Harrington’s jury verdict came down. Har-
rington’s motion was filed within the two-year limit of the old
version of Rule 33, which ran from the date the judgment
became final. See United States v. Cook, 705 F.2d 350, 351
(9th Cir. 1983). The government did not challenge the timeli-
ness of the motion in the district court. In ruling on the merits
of the motion, the district court necessarily concluded that it
was not “just and practicable,” within the meaning of the
Supreme Court’s order adopting the amended rule, to apply
the amended Rule 33 to Harrington. See Fed. R. Crim. P.,
Order Adopting and Amending Rules (Apr. 24, 1998). We
hold that this conclusion was not an abuse of the district
court’s discretion. See United States v. Ross, 372 F.3d 1097,
1105 & n.6 (9th Cir. 2004).
[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 pro-
UNITED STATES v. HARRINGTON 6317
ceeding 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 enti-
tled 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 hold-
ing 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 Fed. R. Crim. P. 33(b)(2).
[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, Har-
rington filed his motion, denominated a Rule 33 Motion for
New Trial, after the completion of his direct appeal and even
after the denial of his first habeas corpus petition. Our deci-
sion in Menefield does not purport to apply to motions filed
after the termination of the appellate process, even if they
bear a similar label.
[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 fur-
ther.” 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 coun-
sel for a motion for a new trial is not constitutionally guaran-
teed. The decision whether to appoint counsel instead rests
with the discretion of the district court.
6318 UNITED STATES v. HARRINGTON
[4] This holding is consistent with the holdings of other cir-
cuits 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 Rule
33 motion. Harrington asserts that he has newly discovered
evidence consisting of photographs of the crime scene, a
street map, and transcripts of prior proceedings that show that
police officers offered perjured testimony at his trial. Harring-
ton argues that this evidence shows that, contrary to the police
officers’ trial testimony, the police officers were not success-
ful in surveilling one of the sales of LSD by Harrington to the
government informant. Harrington raised a similar argument,
based on the same evidence, in his earlier habeas petition.
[5] To prevail on a Rule 33 motion for a new trial based on
newly discovered evidence, a defendant must satisfy a five-
part test: “(1) the evidence must be newly discovered; (2) the
failure to discover the evidence sooner must not be the result
of a lack of diligence on the defendant’s part; (3) the evidence
must be material to the issues at trial; (4) the evidence must
be neither cumulative nor merely impeaching; and (5) the evi-
dence must indicate that a new trial would probably result in
acquittal.” United States v. Kulczyk, 931 F.2d 542, 548 (9th
Cir. 1991).
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,
UNITED STATES v. HARRINGTON 6319
because Harrington was present at the preliminary hearing
and his counsel obtained a cassette tape of that testimony dur-
ing trial. It is unclear from the record whether the evidence of
the officers’ testimony before the grand jury was newly dis-
covered. Nevertheless, any inconsistencies between the offi-
cers’ 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 under-
mine 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 margin-
ally 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 Har-
rington 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 govern-
ment 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, prob-
ably 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 evi-
dentiary hearing. See United States v. Reyes-Alvarado, 963
F.2d 1184, 1188-89 (9th Cir. 1992).
AFFIRMED.