U.S. v. CAMMACHONo. 10-3078-cr.

UNITED STATES OF AMERICA, Appellee,
v.
ALEXANDER CAMMACHO, AKA ALEXANDER ELLIOT, AKA ALEX CAMMACHO, ERIC ALPETER, JASON ALPETER, RODERICK LONGO, CHRISTOPHER SMITH, BRIAN A. MERRIFIELD, JUSTIN BENEVENTO, RICHARD WARREN, JAMIE PHILLIPS, JOSHUA YOUNG, JOHN BERARDI, FRANK LETIZIA, CHRISTOPHER RAWLINS, MICHAEL HIRSCH, Defendants,
ANTHONY DEJOHN, Defendant-Appellant.

United States Court of Appeals, Second Circuit.
February 16, 2012.
STANLEY L. COHEN, Stanley Cohen & Associates, LLC, New York, NY, for Appellant.
PAUL D. SILVER, Assistant United States Attorney (Lisa M. Fletcher, Carl G. Eurenius, Assistant United States Attorneys, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Albany, NY, for Appellee.
PRESENT: BARRINGTON D. PARKER, RICHARD C. WESLEY, RAYMOND J. LOHIER, JR., Circuit Judges.

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.

Anthony DeJohn ("Appellant") appeals from a judgment in the United States District Court for the Northern District of New York (Mordue, J.), convicting him, after a jury trial, of conspiracy to distribute and to possess with the intent to distribute marijuana in violation of 21 U.S.C. § 846 and possession of firearms by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.

We find no error in the district court's dismissal of Appellant's motion for a new trial. At that time, Federal Rule of Criminal Procedure 33(b)(2) provided a seven-day filing period for "[a]ny motion for a new trial grounded on any reason other than newly discovered evidence."1 See United States v. Mayo, 14 F.3d 128, 132 (2d Cir. 1994). Appellant's Rule 33 motion was untimely, and he did not allege "excusable neglect" for his failure to meet the filing deadline. See United States v. Robinson, 430 F.3d 537, 541 (2d Cir. 2005); Fed. R. Crim. P. 45(b)).

Appellant asserts that his motion for a new trial was based on "newly discovered evidence" and thus the two-year filing period under Rule 33(b)(1) applied.2 Appellant's motion and subsequent request to reopen the district court's hearing on the motion were grounded in a claim of ineffective assistance of trial counsel. "[I]neffective assistance claims do not present new evidence within the meaning of Rule 33." United States v. Castillo, 14 F.3d 802, 805 (2d Cir. 1994). "The longer period provided by the Rule for a motion based on newly discovered evidence . . . applies only to motions that address the issues raised by the criminal charges, not to motions that raise collateral issues such as the effectiveness of trial counsel." Mayo, 14 F.3d at 132 (emphasis added). The district court did not err in declining to reach the merits of Appellant's motion.

We also decline to address Appellant's ineffective assistance claim on direct review. Where "the record on appeal does not include the facts necessary to adjudicate a claim of ineffective assistance of counsel, our usual practice is not to consider the claim on the direct appeal, but to leave it to the defendant to raise the claims on a petition for habeas corpus under 28 U.S.C. § 2255." United States v. Oladimeji, 463 F.3d 152, 154 (2d Cir. 2006). Should Appellant choose to further pursue his ineffective assistance claim, habeas proceedings will provide "the forum best suited to developing the facts necessary to determining the adequacy of representation." See Massaro v. United States, 538 U.S. 500, 505 (2003).

Finally, the district court correctly determined that Appellant must serve a term of life without release. The district court properly found that Appellant's conviction requires a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A) because Appellant had committed two prior felony drug offenses that were not part of a "single criminal episode." See United States v. Powell, 404 F.3d 678, 682 (2005).

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

FootNotes


1. A 2009 amendment to Rule 33(b)(2) extended this filing period to fourteen days.
2. A 2008 amendment to Rule 33(b)(1) extended this two-year filing period to three years.

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