USA v. Farris

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:18-CR-00099-RJC-DCK
THIS MATTER is before the Court on the defendant’s Motion to Extend the
Time to File a Motion for a New Trial Pursuant to Rule 33, (Doc. No. 97); his Motion
for New Trial Pursuant to Rule 33, (Doc. No. 98); and the government’s response in
opposition, (Doc. No. 101).
The defendant was found guilty of three drug trafficking offenses by a jury on
April 4, 2019. (Doc. No. 61: Verdict). His appointed trial counsel filed a Renewed
Motion for Judgment of Acquittal pursuant to Rule 29 of the Federal Rules of
Criminal Procedure on April 8, 2019. (Doc. No. 64). The defendant sent a letter to
the Court on June 18, 2019, informing counsel that her services were no longer
desired based on her alleged “completely ineffective” assistance, which documented
specific complaints about her decisions during the trial. (Doc. No. 67). Current
counsel was appointed on July 2, 2019, to replace trial counsel after a hearing. On
August 22, 2019, counsel moved to adopt trial counsel’s timely filed Renewed
Motion for Judgment of Acquittal filed. (Doc. No. 79). The Court granted the motion
to adopt, but denied the motion for acquittal on September 6, 2019. (Doc. No. 82:
Order).
USA )
)
v. ) ORDER
)
GARLIN RAYMOND FARRIS )
)
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On October 11, 2019, the Court scheduled the case for a sentencing hearing
on November 18, 2019. Counsel moved to continue sentencing until mid-January
2020 to research and address issues raised by the defendant, including the filing of
a motion for new trial, (Doc. No. 95), which the Court granted, (Doc. No. 96: Order).
On November 27, 2019, counsel filed the instant motions seeking an extension of
time based on excusable neglect to file a motion for new trial alleging ineffective
assistance by trial counsel. (Doc. Nos. 97, 98). The government objects to the new
trial motion as untimely, not warranted by excusable neglect, and lacking merit.
(Doc. No. 101).
Rule 33(a) of the Federal Rules of Criminal Procedure allows a court to
vacate a judgment and grant a new trial if the interest of justice so requires.
However, a motion based on grounds other than newly discovered evidence must be
filed within fourteen days of the verdict or finding of guilty. Fed. R. Crim. P.
33(b)(2). The Fourth Circuit has definitively stated that a motion for new trial
based on ineffective assistance of counsel must be brought within the time limits in
Rule 33. United States v. Smith, 62 F.3d 641, 648, 650-51 (4th Cir. 1995). The
appellate court continues to apply Smith to affirm the denial of untimely Rule 33
motions. See e.g. United States v. Burgess, --- F. App’x ---, at *1 (4th Cir. Dec. 19,
2019) (“The motion, therefore, was untimely, and we affirm the district court’s
denial on the ground that it lacked jurisdiction to hear the motion.”); United States
v. Gooding, 594 F. App’x 123, 127 n. 4 (4th Cir. 2014) (motion for new trial based on
ineffective assistance “must be filed” within 14 days of verdict); United States v.
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Barbee, 524 F. App’x 15, 17 (4th Cir. 2013) (“[T]he time limits set forth in Rule 33
are jurisdictional.”).
Here, the defendant admits his motion for new trial under Rule 33 is
untimely. (Doc. No. 97: Motion to Extend at 2). Because the government objects on
that basis, the Court must deny the Motion to Extend and dismiss the Motion for
New Trial as time-barred. Eberhart v. United States, 546 U.S. 12, 17-18 (2005)
(finding government waived timeliness objection to Rule 33 motion by not raising it,
but holding that “district courts must observe the clear limits of the Rules of
Criminal Procedure when they are properly invoked”); see also United States v.
Hyman, 884 F.3d 496, 499 (4th Cir. 2017) (under Eberhart, when the government
objects to untimely filing, the court’s duty to dismiss is mandatory).
Even if the Court were to consider the extending the time under Rule
45(b)(1)(B), it would find that the defendant has not established excusable neglect
in this case. The defendant was aware of trial counsel’s performance in early April
2019. Prior to that time, he had shown proficiency for informing the Court of his
needs and dissatisfaction with prior counsel. (Doc. No. 14 (requesting weekly access
to law library); Doc. No. 18 (alleging retained counsel had conflict of interest)). Yet,
he did not allege ineffective assistance of trial counsel until June 18, 2019, two
months after the time period in Rule 33 expired. (Doc. No. 67). Although the
defendant has not met the requirements to seek a new trial under Rule 33, he will
have the opportunity to present his claim of ineffective assistance on direct appeal
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and, if necessary, on collateral attack under 28 U.S.C. § 2255. Smith, 62 F.3d at
651.
IT IS, THEREFORE, ORDERED that the defendant’s Motion to Extend
the Time to File a Motion for a New Trial Pursuant to Rule 33, (Doc. No. 97) is
DENIED, and his Motion for New Trial Pursuant to Rule 33, (Doc. No. 98), is
DISMISSED.
Signed: January 15, 2020
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