Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
8-5-2004
USA v. McArthur
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2144
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
No. 03-2144
UNITED STATES OF AMERICA,
v.
LARRY MCARTHUR
a/k/a Larry Williams
Larry McArthur,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 94-cr-00402-1)
District Judge: Hon. Norma L. Shapiro
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 27, 2004
BEFORE: RENDELL and COW EN, Circuit Judges and SCHW ARZER*, District Judge
(Filed : August 5, 2004)
OPINION
*Honorable William W. Schwarzer, Senior United States District Judge for the Northern
District of California, sitting by designation.
COWEN, Circuit Judge
Larry McArthur appeals an order of the District Court denying and dismissing his
pro se Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255. We
have jurisdiction under 28 U.S.C. § 1291, and will affirm.
On January 19, 1995, a jury in the Eastern District of Pennsylvania convicted
McArthur of being a felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). The conviction was based primarily on the testimony of three Philadelphia
Housing Authority police officers who observed McArthur carrying a sawed-off shotgun
on the Philadelphia streets. McArthur appealed his conviction and sentence, which were
affirmed on December 15, 1995. Because he did not file a petition for certiorari to the
United States Supreme Court, his conviction became final on March 15, 1996.
McArthur filed a § 2255 motion on August 3, 2001, raising claims of ineffective
assistance of counsel, “false reports and misleading facts,” perjured testimony, and newly
discovered evidence. First, he argued that his trial counsel was ineffective because
counsel coerced him into signing three stipulations which were read into evidence at trial.
Next, he alleged inconsistencies in the initial police reports made by the officers involved
and those officers’ testimony before the grand jury and at trial. Finally, he raised as
newly-discovered evidence a January 24, 2001 newspaper article reporting the perjury
conviction and sentence of one of the officers in an unrelated case.
The District Court, finding that McArthur’s claim of newly-discovered evidence
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presented no constitutional issue, converted the bulk of the § 2255 motion into a Federal
Rule of Criminal Procedure 33 motion for a new trial and denied it as untimely. It then
determined that the remainder of the § 2255 motion was untimely under the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), and held that McArthur had not
alleged a sufficient basis for equitably tolling the limitations period. On appeal,
McArthur argues that the District Court erred in determining that the equitable tolling
doctrine was inapplicable to his motion. He also argues that the District Court erred in
rejecting his claim that the perjury conviction constituted “newly discovered evidence”
under 28 U.S.C. § 2255(a) that would bring the motion within the limitations period. We
exercise plenary review over the District Court’s legal conclusion. United States v.
Cepero, 224 F.3d 256, 258 (3d Cir. 2000).
The District Court correctly determined that the “newly discovered” evidence of a
witness’s subsequent perjury conviction in an unrelated case is not an independent ground
for relief in a § 2255 motion. See U.S. v. Garth, 188 F.3d 99, 108 (3d Cir. 1999)
(“‘[F]ederal habeas courts sit to ensure that individuals are not imprisoned in violation of
the Constitution,’ and not to review questions of guilt or innocence.”) (citing Herrera v.
Collins, 506 U.S. 390, 404 (1993)). Because the perjury conviction itself does not
support a claim of a constitutional violation that occurred at trial, McArthur cannot rely
on § 2255(4) to extend the limitations period on his otherwise untimely motion. Nor is
the doctrine of equitable tolling available to McArthur on this ground. Although the
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District Court acted within its discretion to consider the newly discovered evidence claim
as part of a Rule 33 motion for a new trial, it correctly recognized that the limitations
period on such a motion is jurisdictional, and therefore not subject to equitable tolling.
Shendock v. Director, Office of Workers’ Compensation, 893 F.2d 1458, 1466 (3d Cir.
1990) (“Equitable tolling . . . simply is not available when there are jurisdictional
limitations.”); United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987) (“The time
limit for filing motions under Rule 33 is jurisdictional.”). Finally, we find no merit to
McArthur’s argument that the AEDPA limitations period should be tolled with regard to
the constitutional claims in his § 2255 motion because he was never advised of his right
to file a habeas petition. See Pennyslvania v. Finley, 481 U.S. 551, 555 (1987) (no right
to counsel on collateral attacks to a conviction).
For the foregoing reasons, we conclude that the District Court did not err in
determining that McArthur’s motion was time-barred. The judgment of the District Court
entered on March 20, 2003 will be affirmed.
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