United States v. Sanders ( 1997 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                        No. 96-7389
    MELVIN SANDERS, a/k/a Pops,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Middle District of North Carolina, at Winston-Salem.
    N. Carlton Tilley, Jr., District Judge.
    (CR-93-281)
    Submitted: February 27, 1997
    Decided: March 18, 1997
    Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    J. Steven Brackett, RUDISILL & BRACKETT, P.A., Hickory, North
    Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,
    Robert M. Hamilton, Assistant United States Attorney, Greensboro,
    North Carolina, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Melvin Sanders appeals the district court's denial of his motion
    filed pursuant to Fed. R. Crim. P. 33. Because we find that Sanders's
    new trial motion was untimely, we affirm the district court's denial
    of the motion on the grounds that it lacked jurisdiction to hear the
    claim.
    A jury found Melvin Sanders guilty of drug trafficking and money
    laundering, and the court sentenced him to imprisonment. On appeal,
    this Court affirmed Sanders's conviction and sentence. Thereafter,
    Sanders moved for a new trial based on newly discovered evidence
    pursuant to Fed. R. Crim. P. 33. Because Sanders's motion for new
    trial based on ineffective assistance of counsel was not brought within
    the required time period, the district court denied the motion, finding
    that it was untimely and that jurisdiction was lacking. Sanders
    appealed, contending that the district court erred when it failed to hold
    an evidentiary hearing prior to denying the motion.
    A district court's decision denying an evidentiary hearing in con-
    nection with a new trial motion is reviewed for an abuse of discretion.
    United States v. Smith, 
    62 F.3d 641
    , 651 (4th Cir. 1995). A motion
    for new trial based on ineffective assistance of counsel may be
    brought as a motion for new trial based on "other grounds" under Fed.
    R. Crim. P. 33 within seven days of the verdict or within such further
    time as may, within that period, be fixed. Smith , 
    62 F.3d at 650-51
    .
    After the seven day time period for filing new trial motions based on
    any other grounds has expired, a new trial motion based on ineffective
    assistance of counsel will not lie because ineffective assistance claims
    do not count as "evidence" for purposes of Rule 33's two-year time
    limit. 
    Id. at 651
    ; see Fed. R. Crim. P. 33.
    Sanders filed his motion for new trial based on ineffective assis-
    tance of counsel more than a year after final judgment. Because we
    determine that Sanders's new trial motion was untimely, we conclude
    that the court did not abuse its discretion in denying an evidentiary
    hearing prior to dismissing the motion. We therefore affirm the dis-
    trict court's order.
    2
    We dispense with oral argument because the facts and legal conten-
    tions are adequately presented in the materials before the court and
    argument would not aid in the decisional process.
    AFFIRMED
    3
    

Document Info

Docket Number: 96-7389

Filed Date: 3/18/1997

Precedential Status: Non-Precedential

Modified Date: 4/17/2021