[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-14926

Non-Argument Calendar

________________________

D.C. Docket No. 8:14-cr-00496-EAK-AEP-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

ROBERT WILLIAM BARTON, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(November 4, 2020)

Before LAGOA, BRASHER and MARCUS, Circuit Judges.

PER CURIAM: 

Robert Barton, a federal inmate proceeding pro se, appeals the denial of his 

motion for a new trial based on newly discovered evidence consisting of a 2017 

DNA guidelines publication issued by the Scientific Working Group on DNA 

USCA11 Case: 19-14926 Date Filed: 11/04/2020 Page: 1 of 8
2

Analysis Methods (“2017 SWGDAM Guidelines”) that was not available at the time 

of his trial, when he was convicted of being a felon in possession of a firearm, in 

violation of 18 U.S.C. § 922(g). On appeal, Barton argues that: (1) the 2017 

SWGDAM Guidelines would render DNA evidence and expert testimony elicited 

by the government at trial unreliable and inadmissible; and (2) the additional trial 

testimony offered by the government was incredible and, absent the DNA evidence, 

a jury would not have convicted him. After thorough review, we affirm.

We review a district court’s denial of a motion for a new trial based on newly 

discovered evidence for abuse of discretion. United States v. Barsoum, 763 F.3d 

1321, 1341 (11th Cir. 2014). 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. Crim. P. 33(a). Rule 33(b) authorizes a district court to grant a 

new trial based on new evidence only if: (1) the evidence was discovered after trial; 

(2) the failure 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; 

and (5) the evidence is such that a new trial probably would produce a different 

result. United States v. Barton, 909 F.3d 1323, 1337 (11th Cir. 2018). A failure to 

meet any one of these elements is fatal to a motion for a new trial based on newly 

discovered evidence. United States v. Lee, 68 F.3d 1267, 1274 (11th Cir. 1995). 

USCA11 Case: 19-14926 Date Filed: 11/04/2020 Page: 2 of 8
3

These kinds of motions are highly disfavored, and district courts should use great 

caution in granting them. Barton, 909 F.3d at 1337.

We review the application of the law-of-the-case doctrine de novo. United 

States v. Green, 764 F.3d 1352, 1355 (11th Cir. 2014). The law-of-the-case doctrine 

is a self-imposed practice that “operates to create efficiency, finality and obedience 

within the judicial system.” United States v. Anderson, 772 F.3d 662, 668 (11th Cir. 

2014) (quotations omitted). Under the doctrine, a decision by this Court “binds all 

subsequent proceedings in the same case not only as to explicit rulings, but also as 

to issues decided necessarily by implication on the prior appeal.” Id. (quotations 

omitted); see Green, 764 F.3d at 1357. The law-of-the-case doctrine encompasses 

our prior factual findings and conclusions of law. Anderson, 772 F.3d at 668. 

Limited exceptions to the doctrine include new evidence or an intervening change 

in controlling law that commands a different result, or a decision by this Court that 

is clearly erroneous and would cause manifest injustice. Id. at 668–69. 

A district court’s denial of an evidentiary hearing is reviewed for abuse of 

discretion. See Martin v. United States, 949 F.3d 662, 670 (11th Cir. 2020) (28 

U.S.C. § 2255 proceeding). Generally, the district court should conduct an 

evidentiary hearing before deciding a motion for a new trial. United States v. 

Culliver, 17 F.3d 349, 350–51 (11th Cir. 1994). However, it is “well established” in 

this Circuit that a district court may generally decide a motion for a new trial upon 

USCA11 Case: 19-14926 Date Filed: 11/04/2020 Page: 3 of 8
4

affidavits without an evidentiary hearing. United States v. Hamilton, 559 F.2d 1370, 

1373 (5th Cir. 1977).1 Indeed, a district court has the discretion to deny an 

evidentiary hearing on a motion for a new trial if “the acumen gained by a trial judge 

over the course of the proceedings makes her well qualified to rule on the basis of 

affidavits without a hearing.” United States v. Schlei, 122 F.3d 944, 994 (11th Cir. 

1997) (quotations and brackets omitted). 

Burton previously appeared, on direct appeal from his firearm-possession 

conviction, in this Court, arguing that the district court had abused its discretion 

under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), by

admitting expert testimony concerning DNA evidence linking Barton to the firearm. 

See Barton, 909 F.3d 1323. There, we held that, pursuant to Federal Rule of 

Evidence 702, the district court had fairly determined that the opinions of the 

government’s expert, Candy Zuleger, M.S., were based on reliable methods and a 

sufficiently reliable application of those methods under Daubert. Id. at 1332. We 

explained that the district court had not abused its discretion in admitting the DNA 

evidence because the magistrate judge (1) carefully considered each of Barton’s 

arguments against the reliability of Zuleger’s testimony and found her opinion to be 

reliable based on the methods and procedures employed; (2) was entitled to find 

1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as 

binding precedent all Fifth Circuit decisions issued before October 1, 1981.

USCA11 Case: 19-14926 Date Filed: 11/04/2020 Page: 4 of 8
5

accreditation and auditing processes probative of reliability; and (3) properly acted 

as the “gatekeeper” by not finding Barton’s expert more credible than Zuleger, since

that determination was for the jury. Id. at 1332–34. 

In addition, we declined to consider Barton’s submission, on appeal, of the 

2017 SWGDAM Guidelines as additional evidence potentially probative of the 

reliability of Zuleger’s methodology because the evidence was not part of the record 

on appeal and had not been presented to the district court in the first instance. Id. at 

1334–35. We noted, however, that the 2017 SWGDAM Guidelines modifying 

scientific standards for validation standards were potentially important evidence 

cutting against reliability. Id. at 1334. We, therefore, observed that the best remedy 

for Barton to offer new scientific evidence that cast doubt on the reliability of 

forensic evidence used to establish his guilt would be to seek a new trial under Fed. 

R. Crim. P. 33, based on newly discovered evidence. Id. at 1336–37. 

Nevertheless, we ultimately concluded that any error in admitting the DNA 

evidence was harmless because, while the DNA evidence was powerful and 

potentially highly prejudicial, the other evidence was “overwhelming” and “painted 

a powerful picture of Barton’s guilt.” Id. at 1337–39. In discussing the other 

evidence, we detailed that Barton was driving the car in which the gun was found, 

he had confessed twice, once to police at the scene and later to a jailhouse informant, 

and the testimony of Lisa Moore, his passenger, implicated him and was consistent 

USCA11 Case: 19-14926 Date Filed: 11/04/2020 Page: 5 of 8
6

with Barton’s story. Id. at 1338. We found it “clear that sufficient evidence 

uninfected by any conceivable error in admitting the DNA testimony supports 

Barton’s conviction.” Id. We also said that the district court properly instructed the 

jury on weighing expert testimony, so there was “no reasonable likelihood that the 

claimed error affected [Barton’s] substantial rights.” Id. at 1337–39. 

In the instant appeal, we likewise conclude that the district court did not abuse 

its discretion, this time when it denied Barton’s motion for a new trial based on 

newly discovered evidence. For starters, it is the law of the case that any error in the 

admission of the DNA evidence was harmless, and, as a result, there is no reasonable 

probability that exclusion of the DNA evidence based on the admission of the 2017 

SWGDAM Guidelines would produce a different outcome at a new trial. Barton, 

909 F.3d at 1337; Anderson, 772 F.3d at 668. As for Barton’s claim that a jury 

probably would not have convicted him without the DNA evidence, our Court gave 

the whole record extensive consideration on direct appeal and found the non-DNA

evidence to be “overwhelming” and “paint[] a powerful picture of Barton’s guilt.” 

Barton, 909 F.3d at 1338. In other words, we said it was “clear that sufficient 

evidence uninfected by any conceivable error in admitting the DNA testimony 

support[ed] Barton’s conviction” and there was “no reasonable likelihood that the 

claimed error affected [Barton’s] substantial rights.” Id. at 1338–39. 

USCA11 Case: 19-14926 Date Filed: 11/04/2020 Page: 6 of 8
7

We recognize that there is an exception to the law-of-the-case doctrine for 

newly discovered evidence found in Rule 33(b), which requires, among other things, 

that the evidence is the kind that probably would produce a different result at a new 

trial. Id. at 1337. Nevertheless, that exception does not apply here because we’ve 

already concluded that the potential impact of the new evidence -- exclusion of the 

DNA evidence -- would not have changed the result of the trial. Thus, because we

already have addressed issues concerning the DNA evidence on direct appeal and 

concluded that any alleged error in its admission was harmless, the district court was 

bound by our prior decision. Anderson, 772 F.3d at 668; Green, 764 F.3d at 1357. 

Accordingly, Barton cannot satisfy all the prongs of the Rule 33 exception to the 

law-of-the-case doctrine. Barton, 909 F.3d at 1337–39; Lee, 68 F.3d at 1274.

To the extent our Court said on direct appeal that the 2017 SWGDAM 

Guidelines may be probative of reliability, the Guidelines themselves indicate that 

they would be merely impeaching here. See Barton, 909 F.3d at 1334, 1337. On 

their face, the 2017 SWGDAM Guidelines make clear that they did not create 

minimum standards for DNA analysis. Further, the Guidelines expressly provide

that they did not intend to “invalidate or call into question” work performed prior to 

the 2017 revision, which would include the DNA analysis and validation used for 

Barton’s trial. In addition, Zuleger testified that her laboratory adhered to the FBI 

Quality Audit Standards, which the Guidelines themselves say have precedence over 

USCA11 Case: 19-14926 Date Filed: 11/04/2020 Page: 7 of 8
8

the 2017 SWGDAM Guidelines. As Barton correctly notes, the 2017 SWGDAM 

Guidelines could be used as impeachment evidence through which he could attempt 

to discredit the DNA evidence and Zuleger’s expert testimony. However, a new trial 

may not be awarded based on new evidence that is merely impeaching. Id. at 1337. 

In any event, it is unnecessary for us to decide whether the district court correctly 

determined that the Guidelines would be merely impeaching here because the lawof-the-case doctrine dictates that Barton could not show that their admission would 

make a difference at his trial.

Finally, the district court was within its discretion to deny an evidentiary 

hearing. Martin, 949 F.3d at 670. The district court presided over the entirety of 

Barton’s proceedings, and the acumen gained throughout the proceedings made it 

well qualified to rule on the motion without a hearing. Schlei, 122 F.3d at 994; see

Hamilton, 559 F.2d at 1373. Moreover, our holding on direct appeal that any error 

pertaining to the DNA evidence was harmless permitted the district court to decline 

a hearing because exclusion of the DNA evidence at a new trial would not have 

changed the outcome. Barton, 909 F.3d at 1337–38.

Accordingly, the district court did not abuse its discretion, and we affirm. 

AFFIRMED.

USCA11 Case: 19-14926 Date Filed: 11/04/2020 Page: 8 of 8