UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff–Appellee,

v.

MELVIN ELLIS HOLLY,

Defendant–Appellant.

No. 09-7104

(D.C. No. 6:04-CR-00114-SPF-1)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before KELLY, McKAY, and LUCERO, Circuit Judges. 

 

Melvin Ellis Holly, a federal prisoner proceeding pro se, appeals the denial of his 

motions for a new trial. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

 Holly is a former sheriff. In August 2005, he was convicted on fourteen federal 

counts related to the sexual abuse of inmates, employees, and an employee’s daughter at 

the Latimer County jail. On direct appeal, we reversed four of those convictions due to a 

 

* The case is unanimously ordered submitted without oral argument pursuant to 

Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not 

binding precedent, except under the doctrines of law of the case, res judicata, and 

collateral estoppel. The 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. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 19, 2010 

Elisabeth A. Shumaker 

Clerk of Court

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jury-instruction error. See United States v. Holly, 488 F.3d 1298 (10th Cir. 2007). Holly 

then filed a federal habeas petition, which challenged his convictions on the ten 

remaining counts based on ineffective assistance of counsel. The district court denied 

habeas relief, and we declined Holly’s request for a certificate of appealability (“COA”). 

See United States v. Holly, No. 09-7088, 2010 WL 423120 (10th Cir. Feb. 5, 2010) 

(unpublished). 

In October 2009, Holly filed a motion for a new trial followed by a supplemental 

motion for new trial. After reviewing Holly’s claims on the merits, the district court 

denied both motions. Holly timely appealed. 

 Federal Rule of Criminal Procedure 33 permits a district court to grant a new trial 

if required in the interests of justice. “[A] motion for new trial is regarded with disfavor 

and should only be granted with great caution.” United States v. Quintanilla, 193 F.3d 

1139, 1146 (10th Cir. 1999). To show that newly discovered evidence warrants a new 

trial, a defendant must establish: 

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

evidence was not caused by [his] own lack of diligence, (3) the new 

evidence is not merely impeaching, (4) the new evidence is material to the 

principal issues involved, and (5) the new evidence is of such a nature that 

in a new trial it would probably produce an acquittal. 

Id. at 1147 (citation omitted). We review the denial of a Rule 33 motion for an abuse of 

discretion. Id. at 1146. 

 Holly alleges that he has obtained new evidence of the following: (1) his counsel 

had a conflict of interest; (2) prior to trial, the government placed its witnesses in a 

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“Laquinta Inn Motel,” where a “drug party” occurred; (3) a prosecution witness was 

under the influence of drugs when she testified; (4) several witnesses committed perjury 

and had engaged in illegal activities in the past; (5) DNA evidence was concealed from 

the jury; (6) Holly was given psychotropic drugs while in jail; and (7) decisions made by 

the district judge during and after trial violated ethical canons.

 For substantially the same reasons set forth by the district court, we conclude that 

Holly did not make the requisite showings under Rule 33.1

 With respect to defense 

counsel’s alleged conflict of interest, Holly failed to demonstrate that he discovered this 

evidence after trial or that such evidence is material to the principal issues involved in his 

case. We rejected a similar conflict-of-interest claim in denying Holly a COA to appeal 

the denial of his habeas petition; his arguments here are equally unavailing. See Holly, 

2010 WL 423120, at *1 (concluding that Holly “fail[ed] to show either an actual conflict 

of interest or an adverse effect on his counsel’s performance”). 

 Holly’s claims concerning witness placement, drug use, and other misbehavior 

likewise fail. This evidence is merely impeaching, and Holly has not shown that it would 

probably lead to his acquittal. The latter is also true of Holly’s claim regarding concealed 

 1

 Like the district court, we note that Holly’s motions were untimely. See Fed. R. 

Crim. P. 33(b)(1) (requiring that “[a]ny motion for a new trial grounded on newly 

discovered evidence must be filed within 3 years after the verdict or finding of guilty”). 

However, the government did not argue timeliness below, and because this issue is not 

jurisdictional, we do not raise it sua sponte. See Eberhart v. United States, 546 U.S. 12, 

19 (2005). 

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DNA evidence2 and his allegation that he was given psychotropic drugs. Finally, Holly’s 

argument that the district judge violated ethical canons is without merit; to the extent the 

alleged misconduct is evidence, it is immaterial to the principle issues in the case and 

would not have led to an acquittal.3

 

 For the foregoing reasons, we conclude that the district court properly exercised its 

discretion in denying Holly’s motions for a new trial. Accordingly, we AFFIRM. 

Because Holly has failed to advance “a reasoned, nonfrivolous argument on the law and 

facts in support of the issues raised on appeal,” DeBardeleben v. Quinlan, 937 F.2d 502, 

505 (10th Cir. 1991), we DENY his motion to proceed in forma pauperis. 

Entered for the Court 

Carlos F. Lucero 

 Circuit Judge 

 2

 Holly did not indicate the name of the alleged DNA donor in any of his pleadings 

below, nor did he make a reasoned argument that this evidence would result in his 

acquittal. 

3

 Holly also obliquely raises an issue concerning his Miranda rights. This 

argument was not made before the district court, and we will not consider it on appeal. 

See Walker v. Mather (In Re Walker), 959 F.2d 894, 896 (10th Cir. 1992). 

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