*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. This court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

APR 14 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

vs.

MILTON EDWARDS,

Defendant - Appellant.

No. 97-5113

(D.C. No. CV-96-987-C)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before PORFILIO, KELLY, and HENRY Circuit Judges.**

Mr. Edwards, an inmate appearing pro se, appeals from the denial of his

amended motion to vacate, set aside or correct his sentence, 28 U.S.C. § 2255,

and seeks a certificate of appealability. Upon review of the pleadings, it is

apparent that he seeks to appeal from the district court’s denial of a motion for a

new trial under Fed. R. Crim. P. 33.
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According to Mr. Edwards, the district court applied an incorrect legal

standard and should have allowed him discovery and an evidentiary hearing on his

due process claim that his conviction was obtained with falsified evidence. In his

amended petition under § 2255, Mr. Edwards sought a new trial, I R. doc. 186 at

4-7 (supporting brief) (citing Fed. R. Crim. P. 33), based upon newly discovered

evidence that a DEA chemist admitted, beginning in February 1996, that she did

not perform a full complement of tests on marijuana, but reported otherwise. 

Though a different chemist testified at Mr. Edwards’ 1994 cocaine trafficking

trial, the notes of the DEA chemist in question were used.

Mr. Edwards’ convictions were affirmed on direct appeal. See United

States v. Edwards, 69 F.3d 419 (10th Cir. 1995), cert. denied, 116 S. Ct. 2497

(1996). We review a district court’s decision on whether to grant a new trial for

an abuse of discretion and due process claims that the prosecution failed to

disclose material evidence favorable to the defendant de novo. United States v.

Hughes, 33 F.3d 1248, 1251 (10th Cir. 1994). Whether to allow discovery or hold

an evidentiary hearing on a motion for a new trial is reviewed for an abuse of

discretion. See United States v. Blackburn, 9 F.3d 353, 358 (5th Cir. 1993), cert.

denied, 513 U.S. 830 (1994); United States v. Espinosa-Hernandez, 918 F.2d 911,

913 (11th Cir. 1990).

Mr. Edwards contends that the district court erred in relying upon the
- 3 -

standard for granting a motion for a new trial based upon newly discovered

evidence, specifically that the evidence would probably produce an acquittal. See

United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir. 1997). Instead, he

contends that proper standard is one applicable to claims where the government

has not disclosed favorable evidence material to guilt or punishment. See Brady

v. Maryland, 373 U.S. 83, 87 (1963). Thus, according to Mr. Edwards, the issue

was not whether the newly discovered evidence would have produced an acquittal,

but rather whether “‘there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.’” 

Kyles v. Whitley, 514 U.S. 419, 433 (1995) (quoting United States v. Bagley, 473

U.S. 667, 682 (1985) (Blackmun, J.)). The short answer to Mr. Edwards’

contention is that this is a case about newly discovered evidence, not about

withheld evidence.

While Brady claims certainly can be made in the context of a Rule 33

motion, see Hughes, 33 F.3d at 1251 n.2, Mr. Edwards’ claim simply does not

involve suppression of evidence by the prosecution. The government’s obligation

under Brady cannot apply to evidence not in existence at the time of the criminal

proceeding. The newly discovered impeachment evidence in this case relates to

events that occurred well after trial, and does not involve a failure to disclose

prior to or during trial.
- 4 -

The district court did not abuse its discretion in denying the Rule 33 motion

without an opportunity for discovery and an evidentiary hearing. The newly

discovered evidence pertains to the DEA chemist’s reported test results on

marijuana, not cocaine. The evidence suggests that the DEA chemist’s lapse

occurred subsequent to Mr. Edwards’ conviction. The government represents that

the lab report indicates that a DEA special agent performed a presumptive field

test (positive) on the cocaine. I R. doc. 188 at 5. Finally, the substantial

evidence of Mr. Edwards’ involvement is detailed in the direct appeal. See

Edwards, 69 F.3d at 425-427. We agree with the district court that Mr. Edwards

has put forth no more than speculation and conjecture on this claim.

 Mr. Edwards has not appealed the ineffective assistance of trial and

appellate counsel claims rejected by the district court under 28 U.S.C. § 2255.

The district court’s order denying the motion for a new trial is AFFIRMED. 

Insofar as any issues raised under 28 U.S.C. § 2255, we DENY Mr. Edwards a

certificate of appealability, 28 U.S.C. § 2253(c), and DISMISS the appeal.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge