* This order and judgment is not binding precedent, except under the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. 34.1.9. The cause is therefore ordered sub mitted 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 fr om 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 rev iew 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.- 2 -

According to Mr. Edwards, the district court applie d 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 anew 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 wer e used. Mr. Edwards’ convictions were affirmed on direct ap peal. 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 w hether 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 defenda nt 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-He rnandez , 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 base d upon newly discovered evidence, specifically that the evidence would prob ably produce an acquittal. See United States v. Sinclair , 109 F.3d 1527, 1531 (10th Cir. 1997). Instead, h e contends that proper standard is one applicable to claims where the government has not disclosed favorable evidence material to gu ilt or punishment. See Brady v. Maryland , 373 U.S. 83, 87 (1963). Thus, according to Mr. E dwards, the issue was not whether the newly discovered evidence wouldhave produced an acquittal, but rather whether “‘there is a reasonable probabil ity that, had the evidence been disclosed to the defense, the result of the proceed ing 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 an swer to Mr. Edwards’ contention is that this is a case about newly disco vered evidence, not about withheld evidence. While Bradyclaims 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 do es not involve suppression of evidence by the prosecution. The government’s obligation under Bradycannot apply to evidence not in existence at the t ime of the criminal proceeding. The newly discovered impeachment evide nce in this case relates to events that occurred well after trial, and does notinvolve 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 evident iary hearing. The newly discovered evidence pertains to the DEA chemist’s r eported test results on marijuana, not cocaine. The evidence suggests thatthe DEA chemist’s lapse occurred subsequent to Mr. Edwards’ conviction. Th e government represents that the lab report indicates that a DEA special agent p erformed 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 c ourt that Mr. Edwards has put forth no more than speculation and conjectu re on this claim. Mr. Edwards has not appealed the ineffective assi stance of trial and appellate counsel claims rejected by the district c ourt under 28 U.S.C. § 2255. The district court’s order denying the motion for anew 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