1The Honorable Karen E. Schreier, United States District Judge for the District

of South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 01-1191

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United States of America,

Appellant,

v.

Alejandro J. Villalpando,

Appellee.

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Appeal from the United States

District Court for the

Southern District of Iowa.

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Submitted: May 15, 2001

 Filed: August 7, 2001

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Before WOLLMAN, Chief Judge, HANSEN, Circuit Judge, and SCHREIER,1 District

Judge.

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HANSEN, Circuit Judge.

The United States of America appeals the order of the district court granting

Alejandro Villalpando’s motion for new trial. We reverse in part and affirm in part.
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I.

Defendant Alejandro Villalpando was convicted by a jury of drug conspiracy as

charged in Count 1 of the indictment and two firearm offenses charged in Counts 3 and

4. The jury acquitted him on a separate charge of drug possession with intent to

distribute as alleged in Count 2. Villalpando’s trial counsel filed a timely motion for

new trial, including arguments that he as trial counsel had “erred” in eleven

instances–amounting to a claim of ineffective assistance of counsel. The district court

subsequently appointed new counsel and directed supplementation of the motion for

new trial to expose all instances of defense counsel’s conduct that might impact the

ineffective assistance of counsel claim. The supplemental motion asserted a new

instance of ineffective assistance of counsel arising from trial counsel’s crossexamination of the government’s main witness, Tanya Dlouhy. Specifically, the

defendant asserted that trial counsel improperly elicited testimony from Dlouhy that

Villalpando made threats to her and told her he had ordered the murder of someone

who had raped his child in California. The supplemental motion for new trial asserted

that absent trial counsel’s cross-examination of Dlouhy, this prejudicial evidence would

not have been heard by the jury.

The district court granted Villalpando’s motion for new trial and set aside the

jury’s guilty verdicts on Counts 1, 3 and 4, expressing concern about the general quality

of Villalpando’s representation by trial counsel. The court specifically concluded that

trial counsel’s cross-examination of Dlouhy had “absolutely no strategic value” and that

trial counsel’s strategy to place this evidence before the jury “[was] inherently unsound

and unreasonable under prevailing professional norms.” (Appellant’s Adden. at 6.)

Additionally, the district court concluded that viewing this unprofessional conduct in

the context of the whole record, there existed a reasonable probability that but for this

conduct, the result of the proceeding would have been different. (Id.) The government

appeals. 
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II.

The government initially contends that the district court lacked jurisdiction to

consider the claim dealing with counsel’s improper cross-examination of Tanya Dlouhy

because this claim was not included in the original timely-filed motion for new trial.

The seven-day deadline for filing a motion for new trial or receiving an extension of

time to file such a motion is jurisdictional. United States v. Johnson, 982 F.2d 1192,

1195 (8th Cir. 1992); Fed. R. Crim. P. 33. A motion for new trial on a claim of

ineffective assistance of counsel is subject to the seven-day deadline. United States v.

McKinney, 79 F.3d 105, 108 (8th Cir. 1996), judgment vacated on other grounds, 520

U.S. 1226 (1997); United States v. Smith, 62 F.3d 641, 650-51 (4th Cir. 1995).

Additional grounds raised in amendments, supplements or renewals of a timely motion

for new trial are procedurally barred if not asserted within the seven-day time limit

unless the district court grants an extension before the original seven-day period has

expired. United States v. Flynn, 196 F.3d 927, 931-32 (8th Cir. 1999). 

Generally, we strictly apply the time limits of Rule 33 when considering

supplements to motions for new trial, especially when the newly articulated claim

alleges a very different violation of the defendant’s rights than that contained in the

original timely motion. See Flynn, 196 F.3d at 931-32. Recently, however, we applied

a reasonable construction of the facts, “so as to allow the defendants sufficient time for

filing to avoid a jurisdictional time bar” predicated on a “technical misunderstanding.”

United States v. Cruz-Padilla, 227 F.3d 1064, 1067 (8th Cir. 2000). In that case, while

we recognized the strict construction generally given to Rule 33's jurisdictional time

limit, we found that applying such rigidity in that instance would merely subordinate

the defendant’s right to a fair trial while effecting no meaningful rule-based purpose.

Id. at 1067-68.
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Villalpando timely filed a motion for new trial alleging numerous instances of

trial counsel error in support of his claim that he was denied the effective assistance of

counsel. The district court did not rule on the original timely-filed motion and no

extension of time was granted within the seven-day period allowed by the rule.

However, the district court subsequently appointed new counsel and requested

supplementation of the timely motion for new trial because it had been filed by trial

counsel and other instances of ineffectiveness might need to be examined. The

supplemental motion filed by the defendant’s new counsel focused solely on the claim

of ineffective assistance, adding a specific allegation that trial counsel was ineffective

in eliciting prejudicial statements during his cross-examination of Dlouhy. This

allegation did not raise any new constitutional violation. The original timely-filed

motion for new trial had already alleged errors that occurred during trial counsel’s

cross-examination of Dlouhy, as well as numerous other instances of ineffective

assistance of counsel. The supplemental motion permitted by the district court merely

specified another instance in support of the ineffective assistance claim–a claim

previously timely raised. We conclude that a reasonable construction of the

circumstances surrounding the motion for new trial and its supplement is warranted in

this case and that the district court had jurisdiction to consider matters raised in the

supplemental motion in ruling on Villalpando’s motion for new trial.

III.

On the merits, we review the district court’s ruling on a motion for new trial

based on a claim of ineffective assistance of counsel for abuse of discretion. United

States v. Jackson, 204 F.3d 812, 815 (8th Cir. 2000). In order to establish a claim of

ineffective assistance of counsel, the defendant must show that counsel’s performance

fell below an objective standard of reasonable competence, and that the deficient

performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687

(1984). 
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First, the government argues the court erred by failing to hold a hearing on trial

counsel’s strategy. Normally, a collateral postconviction action under 28 U.S.C.

§ 2255 is the appropriate means for raising a claim of ineffective assistance of counsel

and for developing a record sufficient to examine counsel’s performance. Jackson, 204

F.3d at 815. The district court, however, may consider the claim on a motion for new

trial if it has developed an adequate record on the issue. United States v. Stevens, 149

F.3d 747, 748 (8th Cir.), cert. denied, 525 U.S. 1009 (1998). The district court

witnessed trial counsel’s conduct during the entire trial and noted it was of poor quality.

It is doubtful whether allowing further record to be presented concerning trial counsel’s

strategy would alter the court’s conclusion that no competent counsel would have

elicited the damaging testimony. Upon review of the entire record, we find it was

sufficiently developed for the district court to rule on the motion for new trial in this

case.

Second, the government asserts Villalpandos’ trial counsel’s cross-examination

of Dlouhy was part of an acceptable strategy to attack her credibility. We generally

entrust cross-examination techniques, like other matters of trial strategy, to the

professional discretion of counsel. Henderson v. Norris, 118 F.3d 1283, 1287 (8th Cir.

1997), cert. denied, 522 U.S. 1129 (1998); see also Flieger v. Delo, 16 F.3d 878, 887

(8th Cir.) (holding cross-examination that elicited testimony of defendant’s violent

character and reputation was reasonable trial strategy where intended to discredit the

witnesses’ testimony by showing bias against the defendant), cert. denied, 513 U.S.

946 (1994). Some strategy decisions, however, are so unreasonable that they can

support a claim of ineffective assistance of counsel. See Crotts v. Smith, 73 F.3d 861,

866 (9th Cir. 1996) (holding trial counsel was ineffective for failing to object to

testimony indicating that the defendant had told a third party he was wanted for “killing

a cop”); Ward v. United States, 995 F.2d 1317, 1318-19 (6th Cir. 1993) (holding trial

counsel was ineffective where counsel’s cross-examination of a government witness

opened the door for evidence of defendant’s character and propensity to make pipe

bombs). 
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We find no abuse of discretion in the district court’s conclusion that trial

counsel’s cross-examination of Dlouhy fell below an objective standard of reasonable

competence, the first prong of the Strickland analysis. Trial counsel elicited testimony

from Dlouhy tending to establish Villalpando’s character as threatening and murderous.

We agree with the district court that, in the circumstances of this drug-related

prosecution, such evidence had absolutely no strategic value for the defendant.

 Third, the government asserts any errors by trial counsel did not prejudice

Villalpando. To establish prejudice, the second prong of the Strickland analysis,

Villalpando must demonstrate that there is a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 694. Prejudice is not shown if the evidence is so strong that the

outcome of the case could hardly have been other than a verdict of guilty. Goeders v.

Hundley, 59 F.3d 73, 77 (8th Cir. 1995).

The district court found counsel’s cross-examination of Dlouhy inherently

unsound and unreasonable and, considering the entire context, this undermined the

court’s confidence in the outcome of the trial. We conclude the district court acted

within its sound discretion in determining that but for the evidence trial counsel elicited

from Dlouhy, there is a reasonable probability that the jury would have returned a

different verdict on the drug conspiracy charge of Count 1. 

As to the firearm convictions, however, we fail to find prejudice to the defense

from Dlouhy’s testimony. Count 3 of the indictment charged that Villalpando, a felon,

knowingly possessed a Marlin 30-30 caliber rifle that had been transported in interstate

commerce. Count 4 charged that Villalpando, a felon, knowingly possessed a J.C.

Stevens shotgun that had been transported in interstate commerce. As the government

points out, Villalpando stipulated he was a prior felon and that the weapons involved

had been transported across state lines. Furthermore, he admitted on cross-examination

by the government that he had possessed the weapons in question. Because
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Villalpando stipulated he was a felon and because Villalpando admitted in open court

that he possessed the weapons in question, we cannot say that trial counsel’s improper

cross-examination of Dlouhy adversely influenced the outcome as to the firearm

charges in Counts 3 and 4. See United States v. Hill, 864 F.2d 601, 603-04 (8th Cir.

1988) (finding no prejudice from trial counsel’s errors where defendant’s own

statements established his possession of firearms that formed the basis of the weapons

possession charges against him), cert. denied, 489 U.S. 1089 (1989). Thus,

Villalpando has failed to meet the prejudice prong of the Strickland test as to Counts

3 and 4.

IV.

Accordingly, we affirm the order of the district court granting Alejandro

Villalpando a new trial on Count 1. We reverse the grant of a new trial on Counts 3

and 4 and remand to the district court with directions to enter a judgment of conviction

on each of those counts, and for sentencing thereon. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.