1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

)

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) CRIMINAL NO. 09-0094-CG-C

)

)

MARLON RAYFORD WADE, II, )

)

Defendant. )

ORDER

This action is before the court on the Report and Recommendation of the Magistrate

Judge (Doc. 131), the objection thereto of Marlon Rayford Wade, II (Doc. 137), Wade’s motion

to vacate, which this court construed as a motion brought under 28 U.S.C. §2255 (Doc. 114), the

motion of defendant “to transfer case back to Judge Callie Granade’s criminal docket,” which the

court views as a motion for new trial (Doc. 121), the Government’s motion to dismiss

defendant’s 2255 (Doc. 123). The Magistrate Judge’s Report and Recommendation found that

the Government’s motion to dismiss should be granted and that Wade’s motion to vacate should

be denied. (Doc. 131). However, the Magistrate’s Recommendation did not address Wade’s

motion for new trial which defendant contends he asserted in both documents 114 and 121. 

After a de novo review of both motions, the court finds that defendant’s motion to vacate is

premature and that he has failed to meet his burden of establishing that a new trial is warranted. 

Therefore, defendant’s motion to vacate is due to be dismissed and his motion for new trial is

Case 1:09-cr-00094-CG-B Document 142 Filed 03/22/10 Page 1 of 5
1

 The court notes that Rule 33 mandates that a motion for new trial based on any reason

other than newly discovered evidence must be filed within 7 days after the verdict or finding of

guilty. FED. R. CRIM. PROC. 33(b). The jury found defendant guilty on July 17, 2009. (Docs. 70,

71). The earliest motion before the court at this time was filed on December 14, 2009. (Doc.

114). Thus, defendant’s motion would be untimely if it were based on any reason other than

newly discovered evidence. 

2

 Some courts have concluded that a Rule 33 motion based upon newly discovered

evidence is simply not a good fit for an ineffective assistance claim. U.S. v. DeRewal, 10 F.3d

2

due to be denied.

 The Magistrate Judge found that defendant’s 2255 motion was premature because

defendant’s direct appeal is currently pending, and this court has no jurisdiction to entertain the

motion. See United States v. Dunham, 240 F.3d 1328, 1329-1330 (11th Cir. 2001). Defendant

states that his motion to vacate was not intended to be treated as a § 2255 petition, but was

instead filed with the intention of obtaining a new trial. However, even if defendant’s motion to

vacate is viewed as a motion for new trial, the court finds it is due to be denied.

Both defendant’s motion to vacate and his motion “to transfer case back” are based on his

counsel’s alleged ineffective assistance. Defendant seeks a new trial under Rule 33 on the basis

of newly discovered evidence.1

 Defendant states that he “did not discover and learn that his

counsel was grossly ineffective and had effectively joined the prosecutor in an effort to convict

him until after trial and between the time the jury returned the verdict and sentencing.”(Doc. 121,

p. 2). Courts have generally held that an ineffective assistance of counsel claim cannot be

considered "newly discovered evidence" for purposes of Rule 33 where the facts that gave rise to

the claim, including tactical errors of the defense counsel, were known to the defendant at the

time of trial even though the defendant might have failed to appreciate the legal significance of

those facts until some time later.2 See U.S. v. Osorio-Pena, 247 F.3d 14 (1st Cir. 2001); U.S. v.

Case 1:09-cr-00094-CG-B Document 142 Filed 03/22/10 Page 2 of 5
100 (3d Cir. 1993); U.S. v. Hanoum, 33 F.3d 1128 (9th Cir. 1994). These courts hold that newly

discovered evidence must generally, if not always, be related to the issues at trial and the

elements of the crime charged, and newly discovered evidence of the ineffective assistance of

counsel does not directly fit these requirements. See DeRewal, 10 F.3d at 104; Hanoum, 33 F.3d

at 1130. Ineffective assistance of counsel claims are more properly asserted in a postconviction

proceeding under 28 U.S.C. § 2255. U.S. v. Ugalde, 861 F.2d 802, 809 (5th Cir. 1988)

3

Dukes, 727 F.2d 34 (2d Cir. 1984); U.S. v. Medina, 118 F.3d 371 (5th Cir. 1997), U.S. v.

Ugalde, 861 F.2d 802 (5th Cir. 1988); U.S. v. Seago, 930 F.2d 482 (6th Cir. 1991); U.S. v.

Sanchez, 917 F. Supp. 29 (D.D.C. 1996), aff'd, 115 F.3d 1033 (D.C. Cir. 1997); U.S. v. Laird,

948 F.2d 444 (8th Cir. 1991); U.S. v. Jackson, 88 F.3d 845 (10th Cir. 1996). “[T]o get the

benefit of the two-year time limit of Rule 33, the factual evidence itself, not the unappreciated

legal significance of those facts, is what must be unknown to a criminal defendant prior to the

return of the jury verdict. U.S. v. Calderon, 127 F.3d 1314, 1352 (11th Cir. 1997). Defendant

contends otherwise, citing United States v. Brown, 476 F.2d 933, 935 n. 11 (D.C. Cir. 1973) and

United States v. Thompson, 475 F.2d 931, 932 & n. 4 (D.C. Cir. 1973). However, the court is

not persuaded by these District of Columbia cases. As the Fifth Circuit explained:

Newly discovered evidence must be newly discovered evidence. Where, as here,

the facts alleged in support of a motion for a new trial were within the defendant's

knowledge at the time of trial, such a motion may not be treated as one in the

nature of newly discovered evidence for purposes of Rule 33. United States v.

Demopoulos, 506 F.2d 1171, 1180-81 (7th Cir. 1974), cert. denied, 420 U.S. 991,

95 S.Ct. 1427, 43 L.Ed.2d 673 (1975). Ellison, 557 F.2d at 133.

Only the District of Columbia Circuit follows a contrary rule. In United

States v. Brown, 476 F.2d 933, 935 n. 11 (D.C. Cir. 1973), the court found that

"evidence of the ineffectiveness of trial counsel ... brought to the attention of the

court for the first time in support of [a motion for a new trial] is 'newly

discovered' for ... purposes of Rule 33." See also, United States v. Thompson, 475

F.2d 931, 932 & n. 4 (D.C. Cir. 1973); United States v. Smallwood, 473 F.2d 98,

104 (D.C. Cir. 1972) (Bazelon, J., concurring). This line of cases appears to

support the view that a defendant may raise a claim of ineffective assistance of

counsel in a motion for new trial on grounds that such evidence constitutes newly

discovered evidence, even if the facts underlying that claim were known to the

Case 1:09-cr-00094-CG-B Document 142 Filed 03/22/10 Page 3 of 5
4

defendant at the time of trial.

The District of Columbia rule is apparently based upon an effort by that

Circuit to ameliorate the differences between the direct appeal and habeas

standards for reviewing ineffective assistance of counsel claims in that Circuit.

See Ellison, 557 F.2d at 133 (discussing the D.C. Circuit cases). We disagree with

this interpretation of the "newly discovered evidence" clause. That clause does

not create a general, equitable exception to the seven-day limit upon new trial

motions, enabling defendants to escape the limit if it imposes a significant

hardship. Rather, we read the clause to set a longer time limit applicable to a

well-defined set of cases: cases in which previously unknown facts come to light.

Contentions based upon known but unappreciated facts do not fall within the

category governed by the more generous two-year limit.

U.S. v. Ugalde, 861 F.2d 802, 806 (5th Cir. 1988). In the instant case, defendant has not shown

that any previously unknown facts have come to light. The actions of defense counsel

underlying defendant’s claim of ineffective assistance of counsel were known to the defendant at

the time of trial. Therefore, defendant’s motion for new trial is due to be denied. When a court

finds that claims of ineffective assistance of counsel do not constitute newly discovered

evidence, it is thereby deprived of jurisdiction to hear the claims. U.S. v. Villarreal, 324 F.3d 319

(5th Cir. 2003).

CONCLUSION

For the reasons stated above, defendant’s motion to vacate (Doc. 114), to the extent it can

be considered a motion for new trial, and defendant’s motion “to transfer case back to Judge

Callie Granade’s criminal docket” (Doc. 121) are DENIED. The motion of the United States to

dismiss defendant’s motion to vacate brought under 28 U.S.C. §2255(Doc. 123) is GRANTED,

Case 1:09-cr-00094-CG-B Document 142 Filed 03/22/10 Page 4 of 5
3

 This ruling in no way impinges on the defendant’s right to bring a timely 2255 petition

if his direct appeal is not successful.

5

and defendant’s motion to vacate (Doc. 114), 1:09-cv-00810-CG, is hereby DISMISSED3.

DONE and ORDERED this 22nd day of March, 2010.

 /s/ Callie V. S. Granade

 UNITED STATES DISTRICT JUDGE

Case 1:09-cr-00094-CG-B Document 142 Filed 03/22/10 Page 5 of 5