Harrington

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-30413 Plaintiff-Appellee, v.  D.C. No.

CR-94-00455-JET

JOHN FRANCIS HARRINGTON,

OPINION

Defendant-Appellant.  Appeal from the United States District Court for the Western District of Washington Jack E. Tanner, Senior Judge, Presiding

Submitted January 12, 2005* Seattle, Washington

Filed June 6, 2005

Before: Mary M. Schroeder, Chief Judge, Alfred T. Goodwin, and Susan P. Graber, Circuit Judges.

Opinion by Chief Judge Schroeder

*The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). COUNSEL

John F. Harrington, pro se, Taft, California, defendant- appellant.

Ronald J. Friedman, Assistant United States Attorney, Seattle, Washington, for the plaintiff-appellee.

OPINION

SCHROEDER, Chief Judge:

Federal prisoner John Francis Harrington filed a “Motion for New Trial Based on Newly Discovered Evidence” under Federal Rule of Criminal Procedure 33, after he had unsuc- cessfully pursued a direct appeal and a habeas corpus petition. Harrington had…