* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 10 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ENRIQUE PEDRAZA, Defendant - Appellant. No. 03-2234 (D.C. No. CIV-02-1192 MCA/WWD)

(D.N.M.)

ORDER AND JUDGMENT *

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. **
Defendant/Appellant Enrique Pedraza, a federal pris oner appearing pro se, appeals from the district court’s denial of his Fed . R. Crim. P. 33 motion for a new trial. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm. In 1991, following trial by jury, Mr. Pedraza was c onvicted in federal court of conspiracy with the intent to distribute, and po ssession with intent to distribute1 We apply the three-year period, but would reach the same result with the

pre-1998 version of Rule 33, which provided that th e motion was required to be made two years after final judgment. See United States v. Correa , 362 F.3d 1306, 1308 (11th Cir. 2004); United States v. Bowler , 252 F.3d 741, 745 (5th Cir. 2001). - 2 - in excess of five kilograms of cocaine, violations of 21 U.S.C. §§ 841(a)(1) and 846. He was sentenced to 384 months imprisonment. This court affirmed his convictions on appeal. See United States v. Pedraza , 27 F.3d 1515 (10th Cir. 1994). On September 23, 2002, more than ten years after hi s conviction, Mr. Pedraza filed a Rule 33 motion in the district court requesting a new trial on the basis of newly discovered evidence. R. Doc. 1. In his motion, Mr. Pedraza claimed that prosecutors had withheld potentially e xculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 87 (1963). In response, the distric t court found Mr. Pedraza’s petition to be untimely, as Fed. R. Crim. P. 33 requires that such a motion be filed within three years of averdict or finding of guilty. 1 R. Doc. 5 at 1. The court offered Mr. Pedraza the opt ion of either withdrawing his motion for a new trial, or having it recharacterize d as a § 2255 motion. Mr. Pedraza immediately appealed that decision, whereup on we found that the district court order did not constitute a final judgment and we therefore lacked jurisdiction to entertain the appeal. See 28 U.S.C. § 1291; United States v. Pedraza , No. 02-2313, 2003 WL 21246583 at *2 (10th Cir. May 30, 2003). We- 3 -

did, however, instruct Mr. Pedraza to inform the di strict court whether he wished his motion to be reviewed as one brought under Rule 33, or § 2255. Id. In accordance with this directive, Mr. Pedraza filed amotion with the district court renewing his intention to seek relief under Rule 33 , rather than under § 2255. R. Doc. 9 at 2. In apparent accordance with this requ est, the district court considered Mr. Pedraza’s motion under Fed. R. Crim. P. 33 and dismissed it as time barred and not eligible for equitable tolling. R. Doc. 11. On appeal, Mr. Pedraza challenges the district court’s finding that his Rule 33 motion is not eligible for equitable tolling. S pecifically, Mr. Pedraza contends that because the prosecution’s active suppression o f exculpatory evidence impeded his ability to raise his claim, equitable t olling should apply to save his otherwise time barred motion. See Aplt. Br. at 11-14. Despite his heavy reliance on potential injustices wrought by a violation of t he Bradyrule, Mr. Pedraza’s motion fails to recognize that the district court l acks jurisdiction to extend the time period for filing of a Rule 33 motion. Congre ss has made it clear that “[a]ny motion for a new trial grounded on newly discoveredevidence must be filed within 3 years after the verdict or finding of guil ty.” Fed. R. Crim. P. 33(b)(1). Further, “[t]he court may not extend the time to ta ke any action under [Rule 33].” Fed. R. Crim. P. 45(b)(2); see United States v. Robinson , 361 U.S. 220, 224 (1960). Although equitable tolling is within the p ower of the district court in the- 4 -

context of a § 2255 motion, see Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998), it is not on a Rule 33 motion. Because Mr. Pedraza has chosen to proceed under Rule 33, he must accept the jurisdictional li mitations. See United States v. Renick , 273 F.3d 1009, 1019 (11th Cir. 2001).

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge