                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        MAY 30 2003
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 02-2313
          v.                                         (D. New Mexico)
 ENRIQUE PEDRAZA,                          (D.C. Nos. CIV-02-1192-MCA/WWD
                                                   & CR-90-285-SC)
               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before EBEL, HENRY, and HARTZ, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Enrique Pedraza appeals the district court’s October 24, 2002 order denying

the relief sought in his motion for a new trial and allowing him twenty days to

withdraw the motion or have the motion recharacterized and considered under 28



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
U.S.C. § 2255. We conclude that the district court’s October 24, 2002 order is

not a final judgment and that, as a result, we lack jurisdiction over this appeal.



                            I. FACTUAL BACKGROUND

         Mr. Pedraza was convicted after a jury trial of possession with the intent to

distribute and conspiracy with the intent to distribute more than five kilograms of

cocaine, violations of 21 U.S.C. §§ 841(a)(1) and 846. This court affirmed his

convictions on appeal. See United States v. Pedraza, 27 F.3d 1515 (10th Cir.

1994).

         Mr. Pedraza reports that on November 27, 1997, he filed a 28 U.S.C. §

2255 motion to vacate, set aside or modify his sentence. In January 1998, the

district court denied his motion as untimely under the one-year statute of

limitations set forth in the AntiTerrorism and Effective Death Penalty Act

(AEDPA). See Rec. doc. 1, at 2 (Motion for New Trial, filed Sept. 23, 2002).

         On September 23, 2002, Mr. Pedraza filed a motion for a new trial in the

district court. He argued that on November 8, 2001, he had discovered

information pertaining to an internal affairs investigation within the United States

Customs Service that may have provided him with a defense to the prosecution’s

charges. Mr. Pedraza’s theory is that the internal affairs information reveals that

“the real reasons behind the sting operation [that led to his convictions] was to


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steal money rather than drug interdiction.” Id. at 15. He therefore reasons that

this “evidence would have drastically enhanced [his] entrapment defense.” Id.

According to Mr. Pedraza, the prosecution knew about this evidence prior to his

trial but failed to disclose it, thereby violating due process principles established

by Brady v. Maryland, 373 U.S. 83 (1963).

      In reviewing Mr. Pedraza’s motion, the district court noted that under Fed.

R. Crim P. 33, a motion for a new trial based on newly discovered evidence must

be filed within three years after the verdict. Here, the jury returned guilty

verdicts against Mr. Pedraza on November 15, 1991, more than ten years before

he filed this motion. Accordingly, the court concluded, Mr. Pedraza’s motion was

untimely under Fed. R. Crim. P. 33.

      The district court also applied this circuit’s decision in United States v.

Kelly, 235 F.3d 1238 (10th Cir. 2002):


                    [D]istrict courts should not recharacterize a
                    motion purportedly made under some other
                    rule as a motion made under § 2255 unless (a)
                    the movant, with knowledge of the potential
                    adverse consequences of such
                    recharacterization, agrees to have the motion
                    so recharacterized, or (b) the court finds that,
                    notwithstanding its designation, the motion
                    should be considered as made under § 2255
                    because of the nature of the relief sought, and
                    offers the movant the opportunity to withdraw
                    the motion rather than have it so
                    recharacterized.

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Kelly, 235 F.3d at 1241 (quoting Adams v. United States, 155 F.3d 582, 584 (2d

Cir. 1998)). Accordingly, the court allowed Mr. Pedraza twenty days to withdraw

his motion or notify the court in writing that he wished to have the motion

recharacterized as a § 2255 motion. Before the expiration of this twenty-day

period, Mr. Pedraza filed a notice of appeal.



                                  II. DISCUSSION

      Absent certain limited exceptions, “federal appellate courts have

jurisdiction solely over appeals from final decisions of the district courts of the

United States.” Rekstad v. First Bank Sys. Inc., 238 F.3d 1259, 1261 (10th Cir.

2001) (quoting 28 U.S.C. § 1291) (emphasis deleted). A final decision is one that

“ends the litigation on the merits and leaves nothing for the court to do but

execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). Here,

the district court has not yet determined whether Mr. Pedraza elects to continue to

proceed under Fed. R. Civ. P. 33 or to recharacterize his motion as filed pursuant

to 28 U.S.C. § 2255. As a result, the district court has not yet entered a final

decision in this case. Cf. Zucker v. Maxicare Health Plans, Inc., 14 F.3d 477, 481

(9th Cir. 1994) (holding that a district court’s order providing that it would

become final five days after the filing of a joint notice was not a final judgment

because the joint notice had not been filed and because the district court had



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taken no action indicating that the order was a final judgment despite the

nonfulfillment of that condition). We thus lack jurisdiction over this appeal.

       In the district court proceedings, Mr. Pedraza should inform the court

whether he is proceeding under Fed. R. Crim. P. 33 or 28 U.S.C § 2255.

Different time limitations apply to these two provisions.

       Rule 33 motions for a new trial must be filed within three years after the

entry of a final judgment. See United States v. Pearson, 203 F.3d 1243, 1274

(10th Cir. 2000). In contrast to that absolute time limitation regarding Rule 33

motions, the limitations period for § 2255 motions is somewhat flexible. In

particular, a one-year limitations period for the filing of these motions runs from

the latest of:

                 (1) the date on which the judgment of conviction becomes
                 final;
                 (2) the date on which the impediment to making a motion
                 created by governmental action in violation of the
                 Constitution or laws of the United States is removed, if the
                 movant was prevented from making a motion by such
                 governmental action;
                 (3) the date on which the right asserted was initially
                 recognized by the Supreme Court, if that right has been
                 newly recognized by the Supreme Court and made
                 retroactively applicable to cases on collateral review; or
                 (4) the date on which the facts supporting the claim or
                 claims presented could have been discovered through the
                 exercise of due diligence.


28 U.S.C. § 2255.



                                             -5-
      However, a pending motion for a new trial under Fed. R. Crim. P. 33 generally

does not toll the statute of limitations period for filing a 28 U.S.C. § 2255 motion.

See Trenkler v. United States, 268 F.3d 16, 18 (1st Cir. 2001) (stating that “there

is no statutory basis for tolling the limitations period while the prisoner seeks

post-conviction relief under Rule 33”); United States v. Prescott, 221 F.3d 686,

688-89 (4th Cir. 2000) (same). Additionally, when a prisoner has filed a prior §

2255 motion (as Mr. Pedraza admits he has done here), the second § 2255 motion:

             must be certified as provided in section 2244 2 by a panel
             of the appropriate court of appeals to contain--
             (1) newly discovered evidence that, if proven and viewed
             in light of the evidence as a whole, would be sufficient to
             establish by clear and convincing evidence that no
             reasonable factfinder would have found the movant guilty
             of the offense; or
             (2) a new rule of constitutional law, made retroactive to
             cases on collateral review by the Supreme Court, that was
             previously unavailable.

28 U.S.C. § 2255. Upon Mr. Pedraza’s determination of how his motion should

be characterized, the district court should apply the appropriate standard.




      2
        Section 2244 provides in part that “[n]o circuit or district judge shall be
required to entertain an application for a writ of habeas corpus to inquire into the
detention of a person pursuant to a judgment of a court of the United States if it
appears that the legality of such detention has been determined by a judge or court
of the United States on a prior application for a writ of habeas corpus, except as
provided in section 2255.” 28 U.S.C. § 2244(a).

                                         -6-
                               III. CONCLUSION

      Accordingly, we DISMISS this appeal. Mr. Pedraza’s Motion for a

Certificate of Appealability, and Motion to the District Court’s Administrative

Designation of Appellant’s Motion for New Trial - as a Section 2255 Motion are

both denied as moot.

                                              Entered for the Court,



                                              Robert H. Henry
                                              Circuit Judge




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