United States District Court, S.D. New York
June 14, 2005.
UNITED STATES OF AMERICA,
KENNETH STEVENS, Defendant.
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
OPINION and ORDER
On April 14, 2005, defendant filed a pro se motion for an
Order setting aside his conviction and granting him a new trial
on the grounds that he received ineffective assistance of
counsel. His attorney, Donald Buchwald, has declined to make this
motion. Defendant also claims his speedy trial rights were
denied. A motion to that effect was made by prior counsel and
denied by Judge Richard Casey.
On October 27, 2003, Kenneth Stevens was charged with robbing
four federally insured banks in Manhattan.
Count One charged that on or about April 15, 2003,
Stevens robbed a branch of Chase Bank located at 386
Park Avenue South.
Count Two charged that on or about May 5, 2003,
defendant robbed a branch of Chase Bank located at
Count Three charged that on or about May 5, 2003,
Stevens robbed a branch of Citibank located at 170
West 72nd Street.
Count Four charged that on or about May 12, 2003,
Stevens robbed a branch of Chase Bank at 225 Park
Avenue South. The Superseding Indictment charged that, at each robbery,
defendant passed the teller a note demanding money and stating
that he had a bomb.
The case was reassigned from Judge Richard C. Casey and trial
commenced on September 7, 2004. On September 20, 2004, the jury
found Stevens guilty of all four counts of the Superseding
Indictment. After the verdict, Michael Young, Esq., counsel for
Stevens, was asked whether he wished to reserve motions or to
make motions. Mr. Young answered that he would reserve motions.
No request for an extension of the time period in which to file
motions was made and no extension was granted by the Court. On
November 15, 2004, Donald Buchwald, Esq., defendant's fourth
court-appointed lawyer, was substituted as new counsel for
In this motion, Stevens seeks a new trial ("Def. Mot.").
Stevens moves "for an Order setting aside his conviction herein
and granting him a new trial on the grounds that he received
ineffective assistance of counsel at and in connection with the
trial of this matter." In the motion, Stevens claims that he was
prejudiced by the assistance provided in his case by Harvey
Alter, a paralegal working with trial counsel, Michael Young.
Def. Mot. at 2-4. He claims that "`conflicting fingerprint
evidence'" at his trial was not introduced by trial counsel, Def.
Mot. at 4, that trial counsel did not introduce handwriting
testimony that Stevens wished to present, id. at 5, that
Stevens was not afforded an opportunity to review bank
surveillance videos before trial with his counsel, id., and
that he was given no opportunity to preview still photographs introduced by the Government at trial. Id. at
6. Stevens further claims that trial counsel failed to call
certain unnamed witnesses at trial and to subpoena records,
id., failed to hire a private investigator, id., and
conducted an insufficiently aggressive cross-examination of
certain witnesses. Id. at 7.
Finally, Stevens claims that he asked that a speedy trial
motion be filed and that his speedy trial rights be protected. He
suggests that his case should have proceeded to trial more
quickly. As noted above, a prior motion to this effect was made
and denied (see court Docket Item #37).
The motion for a new trial is governed by Federal Rule of
Criminal Procedure 33, which sets time limits for the filing of a
new trial motion. The Court has no jurisdiction to consider any
motion that was not filed in a timely fashion, pursuant to Rule
33. This motion was filed long after the time period set forth in
Rule 33 states, "[u]pon the defendant's motion, the court may
vacate any judgment and grant a new trial if the interest of
justice so requires." Rule 33 sets forth time limits for the
filing of a new trial motion: "Any motion for a new trial
grounded on any reason other than newly discovered evidence must
be filed within 7 days after the verdict or finding of guilty, or
within such further time as the court sets during the 7-day
period." Fed.R.Crim.P. 33 (b) (2). There is no contention here concerning
newly discovered evidence.
Here, the pro se motion was filed nearly seven months after
the September 20, 2004 jury verdict. No extension of time to file
such a motion was granted. Stevens' motion was untimely. This
Court has no jurisdiction to consider same. "These time
limitations [in Rule 33] are jurisdictional; if the motion is not
timely filed, the court lacks power to consider it." United
States v. Mayo, 14 F.3d 128, 132 (2d Cir. 1994).
Defense counsel's alleged ineffectiveness does not excuse the
untimeliness of the motion. In United States v. Moronta-Garcia,
the court ruled that if the "reason for failure to timely file a
post-trial motion is the ineffective assistance of counsel," such
performance does not excuse the tardiness of the motion and
permit the Court to reach the merits. No. 92 Cr. 234 (CSH), 1995
WL 23549 at *2 (S.D.N.Y. Jan. 20, 1995). "There is simply no
authority for the proposition that a defendant's failure to
timely file a motion under Rule 33 may be excused." Id. This is
because "Rule 33 is jurisdictional, . . . the Court lacks the
power to decide an untimely motion, even if it so desired." Id.
Stevens' motion is not appropriate as a motion pursuant to
28 U.S.C. § 2255 at present. As I held, "[i]t is beyond doubt that,
absent extraordinary circumstances, a court does not entertain a
§ 2255 petition until a direct appeal has been decided." Lopez
v. United States, No. 97 Civ. 5680 (JFK), 1997 WL 634176 at *1
(S.D.N.Y. Oct. 15, 1997). This Court lacks jurisdiction to consider the defendant's
motion for a new trial and it is dismissed.
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