Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-28-2006
USA v. Bryant
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1262
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APS-241 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
NO. 06-1262
________________
UNITED STATES OF AMERICA
v.
TYRONE O. BRYANT,
Appellant
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 96-CR-00545)
District Judge: Honorable James T. Giles
_____________________________________
Submitted For Possible Summary Action
Under Third Circuit LAR 27.4 and I.O.P. 10.6
June 8, 2006
Before: SLOVITER, McKEE AND FISHER, Circuit Judges.
(Filed: June 28, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Tyrone O. Bryant appeals from an order of the United States District Court for the
Eastern District of Pennsylvania, denying his motion for a new trial. For the reasons that
follow, we will affirm.
Bryant was convicted of controlled substance offenses after a jury trial in February
1997. In December 2005, Bryant filed a “Motion for New Trial,” pursuant to Rule 33(a)
of the Federal Rules of Criminal Procedure. His motion asked for a new trial based on
three grounds: (1) trial counsel refused to accept his decision to testify and did not call
him to testify at trial; (2) the Government’s witnesses at trial were not placed under oath;
and (3) trial counsel failed to call alibi witnesses at trial. The District Court denied the
motion on December 19, 2005, finding that as a Rule 33 motion it was untimely, and that
it was in essence an unauthorized second or successive motion for habeas corpus relief
filed pursuant to 28 U.S.C. § 2255.
On appeal, Bryant argues that his motion should have been deemed timely
pursuant to Eberhart v. United States, 126 S. Ct. 403 (2005), as the Government did not
raise a defense of untimeliness in the District Court. He also notes that the Government
has not filed any response in this Court. He argues that his motion should have been
heard on the merits, and asks that this Court reverse the District Court’s order and remand
for a new trial or evidentiary hearing.
2
Bryant correctly argues that in Eberhart, the Supreme Court clarified that the
timeliness provisions of Rule 33 are not jurisdictional, and that the timeliness defense
may be forfeited if not raised by the Government. Eberhart, 126 S. Ct. at 407. However,
we do not read Eberhart as precluding a court from applying this “inflexible, claim-
processing rule,” to determine, sua sponte, that a motion is untimely. Id. at 404.
Further, we agree with the District Court that Bryant’s motion was essentially an
unauthorized second or successive § 2255 motion.1 A § 2255 motion is the presumptive
means for a federal prisoner to challenge the validity of a conviction or sentence, unless
such a motion would be “inadequate or ineffective to test the legality of his detention.”
Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002); 28 U.S.C. § 2255. A § 2255
motion is inadequate or ineffective only when “some limitation of scope or procedure”
prevents a movant from receiving an adjudication of his claim. Cradle v. United States ex
rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). “Section 2255 is not inadequate or
ineffective merely because the sentencing court does not grant relief, the one-year statute
of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping
requirements of the amended § 2255.” Id. at 539. A Rule 33 motion, even if timely, may
not be used to do an end-run around the time limitations of § 2255. Johnson v. U.S., 246
F.3d 655, 659 (6th Cir. 2001). Before his motion could have been entertained on the
1
Bryant filed an unsuccessful § 2255 motion in 1999. This Court denied his
application for a certificate of appealability. See United States v. Bryant, C.A.
No. 99-1846, Order entered March 27, 2001.
3
merits in the District Court, Bryant was thus required to file an application seeking
permission to file a second or successive § 2255 motion in this Court.2
We will therefore affirm the order of the District Court. Bryant’s motion for
appointment of counsel is denied.
2
It does not appear that Bryant could meet the qualifications for filing a second or
successive motion, as his motion does not rely on new evidence or a new rule of
constitutional law. See 28 U.S.C. §§ 2244 and 2255.
4