United States v. John Francis Harrington

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 unsuccessfully pursued a direct appeal and a habeas corpus petition. Harrington had been convicted of three counts of distribution of LSD and one count of possession of LSD with an intent to distribute. Harrington appeals pro se the district court’s order denying his “Motion for Appointment of Counsel” in connection with that motion for a new trial. We hold that he was not entitled to appointed counsel because his motion was filed after his direct appeal, and thus was the equivalent of a collateral attack for which counsel is not appointed as of right. We also affirm, on the merits, the denial of Harrington’s motion for a new trial.

As a preliminary matter, the government contends that we need not reach the merits of Harrington’s motion for a new trial because the motion was untimely. Harrington’s motion for a new trial was filed pro se after the three-year deadline imposed by Federal Rule of Criminal Procedure 33, as amended December 1, 1998. The amendment became effective the day before Harrington’s jury verdict…