United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed On: September 5, 2006
No: 04-3141
UNITED STATES OF AMERICA,
APPELLEE
v.
PAUL B. CAMPBELL,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 92cr00213-01)
Before: HENDERSON, GRIFFITH and KAVANAUGH, Circuit
Judges.
ORDER
Upon consideration of the notice of appeal, which the court
construes as including a request for a certificate of appealability;
the motion to dismiss, and the opposition thereto; and the
motion for appointment of counsel, it is
ORDERED that the motion for appointment of counsel be
denied. The interests of justice do not warrant appointment of
counsel in this case. See 18 U.S.C. § 3006A(a)(2)(B). It is
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FURTHER ORDERED that the request for a certificate of
appealability be denied and the motion to dismiss be granted
with respect to appellant’s claims of ineffective assistance of
counsel, trial court error, and prosecutorial misconduct for
sponsoring false testimony by Calvin Stevens. Because
appellant has not made “a substantial showing of the denial of
a constitutional right,” 28 U.S.C. § 2253(c)(2), no certificate of
appealability is warranted. See Slack v. McDaniel, 529 U.S.
473, 484 (2000). It is
FURTHER ORDERED, on the court’s own motion, that
the district court’s denial of appellant’s remaining claims be
affirmed. The district court concluded that “constitutional
challenges to convictions arising from conduct at trial . . . are
generally brought pursuant to § 2255,” and construed the Rule
33 motion as an application under 28 U.S.C. § 2255. United
States v. Campbell, 92cr0213, slip op. at 4 (D.D.C. Sept. 1,
2004). The district court’s recharacterization of appellant’s
motion as to these remaining claims deprived him of the right to
appeal the district court’s denial of the motion without first
obtaining a certificate of appealability. These claims were
timely brought under Fed. R. Crim. P. 33 and were based on
newly discovered evidence. See Fed. R. Crim. P. 33 (providing
that defendant must move for new trial based on newly
discovered evidence “within 3 years after the verdict or finding
of guilty”). The district court’s reliance on United States v.
Canino, 212 F.3d 383 (7th Cir. 2000), was misplaced. Canino
involved recharacterization of a motion, unlike appellant’s Rule
33 motion, inappropriately brought under the Federal Rules of
Criminal Procedure. See Canino, 212 F.3d at 384. Because
appellant’s remaining claims were correctly brought under Rule
33, we conclude that appellant was not required to obtain a
certificate of appealability to appeal their denial by the district
court. Upon consideration of the merits of these claims,
however, appellant is not entitled to a new trial under Fed. R.
Crim. P. 33 because he has not demonstrated that a “new trial
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would probably produce an acquittal.” United States v.
Williams, 233 F.3d 592, 593 (D.C. Cir. 2000) (citation omitted).
The Clerk is directed to withhold issuance of the mandate
herein until seven days after resolution of any timely petition for
rehearing or petition for rehearing en banc. See Fed. R. App. P.
41(b); D.C. Cir. Rule 41.
PER CURIAM
FOR THE COURT:
Mark J. Langer, Clerk