Chicago, Illinois 60604 Submitted December 16, 2015 Decided January 21, 2016 Before… v. United States of America

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 16, 2015*
Decided January 21, 2016
Before
WILLIAM J. BAUER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 15-­‐‑1636
DANIEL L. MASARIK,
Petitioner-­‐‑Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-­‐‑Appellee.
Appeal from the United
States District Court for
the Eastern District of
Wisconsin.
No. 11-­‐‑C-­‐‑0048
C.N. Clevert, Jr., Judge.
Order
After we affirmed his conviction on direct appeal, see United States v. Bartlett,
567 F.3d 901 (7th Cir. 2009), Daniel Masarik filed a motion for collateral relief
under 28 U.S.C. §2255. The district court rejected all of Masarik’s arguments. 2015
U.S. Dist. LEXIS 34350 (E.D. Wis. Mar. 19, 2015). Masarik’s appeal presents only
two of the contentions raised in the district court.
* This successive appeal has been submitted to the original panel under Operating Procedure 6(b).
After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f).

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No. 15-­‐‑1636 Page 2
He first maintains that newly discovered evidence, in the form of statements
that his co-­‐‑defendants made in civil suits after the criminal proceedings ended,
entitle him to a new trial. To the extent this argument takes the form of a request
for a new trial under Fed. R. Crim. P. 33, it fails because of the three-­‐‑year time
limit in Rule 33(b)(1). To the extent this argument depends on §2255, it fails
because relief under that statute is limited to violations of the Constitution or
laws. See 28 U.S.C. §2255(a). Evidence given in other proceedings long after a
criminal trial is completed does not show that the conduct of the trial
transgressed any statute or constitutional rule. See Herrera v. Collins, 506 U.S. 390
(1993). Newly discovered evidence may relieve a prisoner from a procedural
default, and thus permit litigation on genuine constitutional or statutory claims,
but new evidence is not itself a basis for collateral relief. (Masarik does not
contend, and could not plausibly contend, that his co-­‐‑defendants’ civil testimony
establishes actual innocence in the sense that no reasonable factfinder could have
convicted him. See 28 U.S.C. §2255(h)(1). As our original opinion recounts, the
evidence against Masarik is quite strong.)
Masarik’s second argument is that the prosecutor failed to reveal Brady
information—and he seeks to excuse a procedural default on that score by
contending that his appellate lawyer was ineffective for failing to raise the
argument. The district court’s opinion concludes that this argument fails for
several reasons, only one of which we need mention: the information in question
was known to the defense. Co-­‐‑defendant Bartlett made a statement to the FBI,
and the prosecutor did not give Masarik’s lawyer a copy. Yet Bartlett testified to
the same effect in the state trial that preceded the federal prosecution. Masarik
and his lawyers knew what position Bartlett had staked out in that trial, at which
Bartlett testified that officers Packard and Schabel, but no one else, had attacked
Jude, the victim. The statement to the FBI repeated Bartlett’s position that
Masarik was not among Jude’s assailants. Brady does not require a prosecutor to
reveal information already possessed or readily accessible by the defense.
See United States v. Agurs, 427 U.S. 97, 103 (1976); United States v. Morris, 80 F.3d
1151, 1170 (7th Cir. 1996). That Bartlett made similar statements to an FBI agent
and a state jury does not change the nature of the information. Masarik contends
that the information in the statement to the FBI, though inadmissible (it would
have been hearsay if offered in the federal trial), could have led to the discovery
of admissible information. That is equally true about Bartlett’s testimony, so
there was no constitutional problem under the Brady doctrine.
AFFIRMED

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