[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-13959

Non-Argument Calendar

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D.C. Docket No. 1:08-cr-00204-KD-N-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

DANIEL STUART ADDISON, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Alabama

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(June 20, 2014)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM: 

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Daniel Stuart Addison appeals pro se the district court’s denial of his third 

motion for a new trial based on newly discovered evidence pursuant to Federal 

Rule of Criminal Procedure 33. Following a jury trial in August 2008, Addison 

was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. 

§ 922(g)(1). He filed the instant motion for a new trial in February 2013. The 

district court denied motion as untimely after concluding that Addison did not 

merit equitable tolling of the three-year time period for filing Rule 33 motions and 

that his new evidence did not warrant a new trial under Rule 33. 

On appeal, Addison argues that he is entitled to equitable tolling because he 

pursued his rights diligently in obtaining the newly discovered evidence and 

extraordinary circumstances stood in his way of timely filing his Rule 33 motion. 

He also contends that his newly discovered evidence justifies a new trial under 

Rule 33. After review, we affirm. 

We review the denial of a motion for a new trial under Rule 33 for abuse of 

discretion. United States v. Sweat, 555 F.3d 1364, 1367 (11th Cir. 2009) (per 

curiam). We review the district court’s determination that equitable tolling does 

not apply de novo. Outler v. United States, 485 F.3d 1273, 1278 (11th Cir. 2007)

(per curiam). 

Rule 33 provides that “[u]pon the defendant’s motion, the court may vacate 

any judgment and grant a new trial if the interest of justice so requires.” Fed. R.

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Crim. P. 33(a). A defendant has three years after the verdict or finding of guilt to 

file a Rule 33 motion if it is based on newly discovered evidence. Fed. R. Crim. P. 

33(b)(1). The Supreme Court has held that Rule 33’s time limitations are not a 

jurisdictional rule, but are “admittedly inflexible because of [Federal Rule of 

Criminal Procedure Rule] 45(b)’s insistent demand for a definite end to 

proceedings.” Eberhart v. United States, 546 U.S. 12, 19, 126 S. Ct. 403, 407 

(2005) (per curiam). 

Equitable tolling “is an extraordinary remedy which is typically applied 

sparingly,” and the movant bears the burden of showing that it is warranted. Drew 

v. Dep’t of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002) (internal quotation marks

omitted). To be entitled to equitable tolling, a movant must show “(1) that he has 

been pursuing his rights diligently, and (2) that some extraordinary circumstance 

stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631,

649, 130 S. Ct. 2549, 2562 (2010) (internal quotation marks omitted). While we 

have not determined whether equitable tolling applies to Rule 33 motions based on 

newly discovered evidence, we find that even if it does, Addison cannot 

demonstrate he is entitled to equitable tolling on his Rule 33 motion. 

We have stated that motions for a new trial are “highly disfavored” and that 

district courts should exercise caution in granting a new trial motion based on 

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newly discovered evidence. United States v. Jernigan, 341 F.3d 1273, 1287 (11th 

Cir. 2003). To merit a new trial based on newly discovered evidence, a

defendant must show that: 

(1) the evidence was discovered after trial, (2) the failure of the 

defendant to discover the evidence was not due to a lack of due 

diligence, (3) the evidence is not merely cumulative or impeaching, 

(4) the evidence is material to issues before the court, and (5) the 

evidence is such that a new trial would probably produce a different 

result. 

Id. “The failure to satisfy any one of these elements is fatal to a motion for a new 

trial.” United States v. Thompson, 422 F.3d 1285, 1294 (11th Cir. 2005) (internal 

quotation marks omitted). 

Here, the district court did not abuse its discretion in denying Addison’s 

motion for a new trial as it was filed more than three years after the jury rendered 

its verdict on August 4, 2008. See Fed. R. Crim. P. 33(b)(1). Further, even 

assuming equitable tolling may be applied in the Rule 33 context, Addison has not 

shown that the district court erred in failing to apply equitable tolling because he 

did not show that he pursued his rights diligently. See Holland, 560 U.S. at 649, 

130 S. Ct. at 2562. 

Addison filed the instant motion in February 2013. He argues, among other 

things, that affidavits from George McIntyre and Addison’s mother and stepfather, Linda and George Stokes, present new evidence that require a new trial. At

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his 2008 trial, McIntyre’s testimony was used to show that Addison had possession 

of the firearm. McIntyre’s subsequent affidavit, dated May 7, 2012, recants that 

testimony. Likewise, George Stokes, his step-father, in an affidavit dated July 9, 

2012, clarified that Addison was not in actual or constructive possession of the 

rifle. His mother’s affidavit, dated February 7, 2012, stated that Addison moved 

out of her residence months before the firearm was discovered in her residence. 

As to McIntyre, Addison did not contact him until September 1, 2009. 

Then, four months passed between his first and second letter to McIntyre, and an 

additional 18 months between his second and third letter to McIntyre. We agree 

with the district court that Addison did not meet his burden of showing that he 

exercised reasonable diligence in obtaining McIntyre’s affidavit. As to George 

Stokes’s affidavit, Addison also did not show reasonable diligence as almost four 

years passed between Addison’s conviction and the affidavit dated July 9, 2012. 

Addison failed to present any evidence that he had attempted to obtain George 

Stokes’s affidavit prior to July 2012. With respect to Linda Stokes’s affidavit, 

Addison similarly failed to show reasonable diligence that he attempted to obtain 

her affidavit before February 2012. Accordingly, there was no reasonable basis to 

find that he merited equitable tolling as to these affidavits. 

Morever, even if Addison were entitled to equitable tolling, he failed to 

establish that his proffered evidence met all five of the elements necessary to merit 

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a new trial based on newly discovered evidence. See Thompson, 422 F.3d at 1294; 

Jernigan, 341 F.3d at 1287.

 Accordingly, we affirm.

AFFIRMED. 

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