UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50872
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MISAEL MEDINA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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July 22, 1997
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:
Appellant Jose Misael Medina was convicted of obstructing
interstate commerce and conspiring to do so, in violation of the
Hobbs Act. 18 U.S.C. § 1951. The charges arose from the hijacking
and robbery of a delivery truck loaded with computer components.
Appellant appeals his conviction and sentence. We affirm.
Medina appeals the district court’s denial of his motion for
a new trial. A new trial motion filed more than seven days after
the jury’s verdict, as Medina’s was, must be “based on the ground
of newly discovered evidence.” FED. R. CRIM. P. 33. Medina
proffered “newly discovered evidence” that his trial counsel had
been constitutionally ineffective under the test articulated in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). The district court rejected this claim on the merits,
finding that Medina was not prejudiced by defense counsel’s alleged
errors. Medina claims that this was an abuse of discretion. See
United States v. Freeman, 77 F.3d 812, 815 (5th Cir. 1996) (abuse
of discretion standard) (citation omitted). The government claims
that the district court applied Strickland correctly.
Alternatively, the government contends that under Fifth Circuit
case law, a new trial motion cannot be based on “newly discovered
evidence” of trial counsel’s ineffectiveness.
We agree with the latter contention and need not consider the
former. In this circuit, a Rule 33 motion, filed more than seven
days after the verdict and premised on “newly discovered evidence,”
is an improper vehicle for raising a claim of ineffective
assistance of counsel. United States v. Ugalde, 861 F.2d 802, 807-
09 (5th Cir. 1988), cert. denied, 490 U.S. 1097, 109 S.Ct. 2447,
104 L.Ed.2d 1002 (1989).
Because appellant draws the opposite conclusion from Ugalde,
it may be helpful to review our opinion in that case. Ugalde filed
a motion for a new trial more than seven days after his conviction,
proffering two distinct types of “newly discovered evidence”
relating to his trial counsel’s performance. The first category
comprised facts which were known to Ugalde at trial, but whose
legal significance he did not appreciate until afterward. Citing
2
the text of Rule 33 and several other circuits’ case law, we held:
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.
Ugalde, 861 F.2d at 806 (internal citations omitted). Ugalde has
been cited repeatedly for this proposition. See United States v.
Zuniga-Salinas, 945 F.2d 1302, 1305 (5th Cir. 1991), aff’d in part
and rev’d in part on other grounds, 952 F.2d 876 (5th Cir. 1992)
(en banc); United States v. Seago, 930 F.2d 482, 489 (6th Cir.
1991); United States v. Lema, 909 F.2d 561, 565 (1st Cir. 1990);
United States v. Miller, 869 F.2d 1418, 1421 (10th Cir. 1989).
Medina erroneously assumes that that when the facts underlying
an ineffective assistance claim are actually unknown to the
defendant at the time of trial, these facts constitute new evidence
for purposes of Rule 33. This inference does not follow from our
first holding in Ugalde. Moreover, it is flatly contradicted by
our second holding in Ugalde: that even when the defendant learns
facts bearing on counsel’s ineffectiveness after trial, he cannot
raise an ineffective assistance claim by filing a Rule 33 motion
based on “newly discovered evidence.” See Ugalde, 861 F.2d at 807-
09. This is by far the majority view of the circuits. United
States v. Stockstill, 26 F.3d 492, 497 n.9 (4th Cir. 1994)
(collecting cases), cert. denied, 513 U.S. 941, 115 S.Ct. 345, 130
L.Ed.2d 302 (1994).
In explaining this second holding, the Ugalde court emphasized
that new trial motions based on newly discovered evidence “are
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disfavored by the courts” and are granted only if the defendant can
pass an “unusually stringent substantive test.” Ugalde, 861 F.2d
at 808 (citations omitted). Such motions are most appropriate when
the newly discovered evidence “goes directly to proof of guilt or
innocence.” Id. at 807-08 (citations omitted). Our circuit has
recognized exceptions to this general rule. For example, we have
allowed Rule 33 motions based on newly discovered evidence of jury
tampering or Brady violations. Id. at 808, 809 (citations
omitted). However, we pointedly refused in Ugalde to carve out an
exception for claims based on newly discovered evidence that trial
counsel was ineffective.1 Id. at 809.
Our reasoning in Ugalde remains persuasive today. “Criminal
procedure seeks results that are fair, final, and speedily
obtained.” Id. at 807. The various procedural devices for
securing post-conviction relief are all, to some degree, exceptions
to the policy favoring finality. However, in the context of a new
trial motion, finality remains a paramount concern unless the
defendant can show that an injustice occurred. As explained:
[T]he primary purpose of the newly discovered evidence
rule is to afford relief when, “despite the fair conduct
of the trial, . . . facts unknown at the trial” make
clear that “substantial justice was not done.”
Id. at 807 (quoting United States v. Johnson, 327 U.S. 106, 112-13,
1
The court in Ugalde commented that no hardship would result from
its holding, inasmuch as Ugalde would fail the substantive test for
Rule 33 claims. We read this as dicta, rather than as a holding on
the merits that Ugalde had failed to meet his burden under Rule 33.
The court had already squarely held that no new trial motion filed
more than seven days after the verdict could be based on “newly
discovered evidence” of counsel’s ineffectiveness.
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66 S.Ct. 464, 466-67, 90 L.Ed. 562 (1946) (construing predecessor
to Rule 33)).
We emphasize finality in the context of Rule 33 because of our
confidence that, whatever facts were unknown at the time of trial,
the trial itself was not fundamentally unfair. This is in marked
contrast to a federal habeas petition under 28 U.S.C. § 2255, which
must be premised on a fundamental breakdown in the procedures
designed to assure a fair and reliable outcome in the district
court. As the Supreme Court has explained:
The high standard for newly discovered evidence claims
presupposes that all the essential elements of a
presumptively accurate and fair proceeding were present
in the proceeding whose result is challenged. An
ineffective assistance claim asserts the absence of one
of the crucial assurances that the result of the
proceeding is reliable, so finality concerns are somewhat
weaker and the appropriate standard of prejudice should
be somewhat lower.
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068 (internal citation
omitted), quoted in Ugalde, 861 F.2d at 809.
Because a crucial element of a fair trial is absent when
defense counsel is constitutionally ineffective, the preferred
device for raising an ineffective assistance claim is a federal
habeas petition.2 “That mechanism, rather than a new trial, seems
best to accommodate the interests in finality and fairness with
respect to ineffective assistance of counsel claims.” Ugalde, 861
2
A habeas petition has the further advantage of allowing the
development of a factual record regarding counsel’s effectiveness.
See, e.g., United States v. Krout, 66 F.3d 1420, 1435 (“Only in
that rare instance where the details of the attorney’s conduct are
‘well developed’ in the record is such a claim properly considered
on direct appeal.” (citation omitted), cert. denied, ---U.S.---,
116 S.Ct. 963, 133 L.Ed.2d 884 (1996).
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F.2d at 809. At any rate, raising an ineffectiveness claim through
the mechanism of a new trial motion based on newly discovered
evidence is wholly impermissible. We therefore affirm the district
court’s denial of Medina’s Rule 33 motion. We do so without
prejudice to Medina’s right to petition for federal habeas relief.
We also reject Medina’s contention that the district court
abused its discretion by admitting testimony regarding the victim’s
identification of Medina based on an array of photographs.
Finally, we reject Medina’s contention that the district court
clearly erred by refusing to reduce his sentence for his “minimal”
or “minor” role in the offense. The government proved by a
preponderance of the evidence that Medina participated in numerous
planning sessions, several abortive attempts to carry out the
scheme, and the actual hijacking and robbery.
Appellant’s conviction and sentence are AFFIRMED.
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