[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 23, 2008
No. 07-14725
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 06-00031-CR-5-HL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERMAINE L. HARP,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(June 23, 2008)
Before TJOFLAT, CARNES and BARKETT , Circuit Judges.
PER CURIAM:
On March 22, 2006, a Middle District of Georgia grand jury returned a two-
count indictment against appellant, Michael Chambliss, and Eric Thomas charging
them, in Count One, with the armed robbery of Sun Trust Bank in Macon,
Georgia, on November 13, 2001, in violation of 18 U.S.C. §§ 2113(a) and (d), and,
in Count Two, with brandishing and carrying a firearm in furtherance of the Count
One robbery, in violation of 18 U.S.C. § 924(c)(1)A)(I) and (ii). The defendants
pled not guilty and stood trial in April 2007. The jury found Chambliss and
Thomas guilty. The jury hung as to appellant, and the district court declared a
mistrial in his case.
Appellant stood trial before a jury again in July 2007. The jury was selected
on Monday, July 9; the trial would begin the following Monday, July 16. On July
11, appellant moved the district court, pursuant to 18 U.S.C. § 3006A(e), for
funding to conduct DNA testing of “any and all items of evidence” recovered by
the police from a motel room, where the defendants had met the day of the
robbery, and from two vehicles that had been involved in the criminal enterprise.
The court heard the motion on July 12. The Government opposed the motion,
stating that even if the evidence was tested by July 16, when the trial would begin,
the Government would be unable to review the results of the tests and prepare a
response. The court denied the motion on the grounds that appellant had waited
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until the eleventh hour to bring it, and, given the substance of defense counsel’s
argument in support of the motion, that the DNA tests would not be sufficient to
exonerate appellant.
The trial proceeded as scheduled. In addition to numerous pieces of highly
inculpatory physical evidence, the Government called the driver of the getaway
car, Padrience Davis, and several other witnesses; all incriminated appellant. The
jury found appellant guilty as charged, and the court sentenced him to consecutive
prison terms of 57 months on Count One and 60 months on Count Two. He now
appeals, seeking a new trial on two grounds: (1) his attorney rendered ineffective
assistance of counsel, and (2) the court abused its discretion in denying his motion
for funds for DNA testing. We affirm.
We do not address appellant’s first ground because the record is not
sufficiently developed on the ineffective assistance issue. That ground, if
appellant believes it has merit, should be asserted in a motion filed under 28
U.S.C. § 2255. See United States v. Andrews, 953 F.2d 1312, 1327 (11th Cir.
1992). We turn then to appellant’s second ground for a new trial.
“The decision to grant or deny a motion for expert services pursuant to 18
U.S.C. § 3006A(e) is committed to the sound discretion of the district court and
may only be overturned upon a showing of abuse of discretion.” United States v.
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Rinchack, 820 F.2d 1557, 1563 (11th Cir. 1987). Under § 3006A(e), counsel for a
defendant financially unable to obtain expert services for adequate representation
may apply to the court for the needed funds. If the court finds that the services are
necessary and that the defendant is financially unable to obtain them, the court
must authorize counsel to obtain the services. 18 U.S.C. § 3006A(e)(1).
However, “[a] trial court is not required to grant an eleventh hour request for
section 3006A(e) services, particularly where the delay in making the request is
unjustified and would require a continuance of the . . . trial.” Rinchack, 820 F.2d
at 1564. And “[a] court may refuse to authorize section 3006(A)(e) expert services
on grounds that they are not necessary when it concludes that the defendant does
not have a plausible claim or defense.” Id.
The district court did not abuse its discretion in denying appellant’s motion
for funds. The motion was untimely, and DNA testing appeared to be unnecessary
to appellant’s defense.
AFFIRMED.
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