                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-2006

USA v. Bryant
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1262




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APS-241                                                 NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                         ________________

                               NO. 06-1262
                            ________________

                     UNITED STATES OF AMERICA

                                       v.

                          TYRONE O. BRYANT,

                                  Appellant
                ____________________________________

               On Appeal From the United States District Court
                   For the Eastern District of Pennsylvania
                           (D.C. No. 96-CR-00545)
                  District Judge: Honorable James T. Giles
                _____________________________________

                  Submitted For Possible Summary Action
                Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                June 8, 2006

          Before: SLOVITER, McKEE AND FISHER, Circuit Judges.

                           (Filed: June 28, 2006)

                        _______________________

                               OPINION
                        _______________________
PER CURIAM

       Tyrone O. Bryant appeals from an order of the United States District Court for the

Eastern District of Pennsylvania, denying his motion for a new trial. For the reasons that

follow, we will affirm.

       Bryant was convicted of controlled substance offenses after a jury trial in February

1997. In December 2005, Bryant filed a “Motion for New Trial,” pursuant to Rule 33(a)

of the Federal Rules of Criminal Procedure. His motion asked for a new trial based on

three grounds: (1) trial counsel refused to accept his decision to testify and did not call

him to testify at trial; (2) the Government’s witnesses at trial were not placed under oath;

and (3) trial counsel failed to call alibi witnesses at trial. The District Court denied the

motion on December 19, 2005, finding that as a Rule 33 motion it was untimely, and that

it was in essence an unauthorized second or successive motion for habeas corpus relief

filed pursuant to 28 U.S.C. § 2255.

       On appeal, Bryant argues that his motion should have been deemed timely

pursuant to Eberhart v. United States, 126 S. Ct. 403 (2005), as the Government did not

raise a defense of untimeliness in the District Court. He also notes that the Government

has not filed any response in this Court. He argues that his motion should have been

heard on the merits, and asks that this Court reverse the District Court’s order and remand

for a new trial or evidentiary hearing.




                                               2
       Bryant correctly argues that in Eberhart, the Supreme Court clarified that the

timeliness provisions of Rule 33 are not jurisdictional, and that the timeliness defense

may be forfeited if not raised by the Government. Eberhart, 126 S. Ct. at 407. However,

we do not read Eberhart as precluding a court from applying this “inflexible, claim-

processing rule,” to determine, sua sponte, that a motion is untimely. Id. at 404.

       Further, we agree with the District Court that Bryant’s motion was essentially an

unauthorized second or successive § 2255 motion.1 A § 2255 motion is the presumptive

means for a federal prisoner to challenge the validity of a conviction or sentence, unless

such a motion would be “inadequate or ineffective to test the legality of his detention.”

Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002); 28 U.S.C. § 2255. A § 2255

motion is inadequate or ineffective only when “some limitation of scope or procedure”

prevents a movant from receiving an adjudication of his claim. Cradle v. United States ex

rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). “Section 2255 is not inadequate or

ineffective merely because the sentencing court does not grant relief, the one-year statute

of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping

requirements of the amended § 2255.” Id. at 539. A Rule 33 motion, even if timely, may

not be used to do an end-run around the time limitations of § 2255. Johnson v. U.S., 246

F.3d 655, 659 (6th Cir. 2001). Before his motion could have been entertained on the


       1
        Bryant filed an unsuccessful § 2255 motion in 1999. This Court denied his
application for a certificate of appealability. See United States v. Bryant, C.A.
No. 99-1846, Order entered March 27, 2001.

                                              3
merits in the District Court, Bryant was thus required to file an application seeking

permission to file a second or successive § 2255 motion in this Court.2

       We will therefore affirm the order of the District Court. Bryant’s motion for

appointment of counsel is denied.




       2
        It does not appear that Bryant could meet the qualifications for filing a second or
successive motion, as his motion does not rely on new evidence or a new rule of
constitutional law. See 28 U.S.C. §§ 2244 and 2255.

                                             4
