                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 01-1191
                                ________________

United States of America,                 *
                                          *
             Appellant,                   *
                                          *      Appeal from the United States
      v.                                  *      District Court for the
                                          *      Southern District of Iowa.
Alejandro J. Villalpando,                 *
                                          *
             Appellee.                    *

                                ________________

                                Submitted: May 15, 2001
                                    Filed: August 7, 2001
                                ________________

Before WOLLMAN, Chief Judge, HANSEN, Circuit Judge, and SCHREIER,1 District
      Judge.
                          ________________

HANSEN, Circuit Judge.

      The United States of America appeals the order of the district court granting
Alejandro Villalpando’s motion for new trial. We reverse in part and affirm in part.




      1
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota, sitting by designation.
                                           I.

       Defendant Alejandro Villalpando was convicted by a jury of drug conspiracy as
charged in Count 1 of the indictment and two firearm offenses charged in Counts 3 and
4. The jury acquitted him on a separate charge of drug possession with intent to
distribute as alleged in Count 2. Villalpando’s trial counsel filed a timely motion for
new trial, including arguments that he as trial counsel had “erred” in eleven
instances–amounting to a claim of ineffective assistance of counsel. The district court
subsequently appointed new counsel and directed supplementation of the motion for
new trial to expose all instances of defense counsel’s conduct that might impact the
ineffective assistance of counsel claim. The supplemental motion asserted a new
instance of ineffective assistance of counsel arising from trial counsel’s cross-
examination of the government’s main witness, Tanya Dlouhy. Specifically, the
defendant asserted that trial counsel improperly elicited testimony from Dlouhy that
Villalpando made threats to her and told her he had ordered the murder of someone
who had raped his child in California. The supplemental motion for new trial asserted
that absent trial counsel’s cross-examination of Dlouhy, this prejudicial evidence would
not have been heard by the jury.

        The district court granted Villalpando’s motion for new trial and set aside the
jury’s guilty verdicts on Counts 1, 3 and 4, expressing concern about the general quality
of Villalpando’s representation by trial counsel. The court specifically concluded that
trial counsel’s cross-examination of Dlouhy had “absolutely no strategic value” and that
trial counsel’s strategy to place this evidence before the jury “[was] inherently unsound
and unreasonable under prevailing professional norms.” (Appellant’s Adden. at 6.)
Additionally, the district court concluded that viewing this unprofessional conduct in
the context of the whole record, there existed a reasonable probability that but for this
conduct, the result of the proceeding would have been different. (Id.) The government
appeals.


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                                           II.

       The government initially contends that the district court lacked jurisdiction to
consider the claim dealing with counsel’s improper cross-examination of Tanya Dlouhy
because this claim was not included in the original timely-filed motion for new trial.
The seven-day deadline for filing a motion for new trial or receiving an extension of
time to file such a motion is jurisdictional. United States v. Johnson, 982 F.2d 1192,
1195 (8th Cir. 1992); Fed. R. Crim. P. 33. A motion for new trial on a claim of
ineffective assistance of counsel is subject to the seven-day deadline. United States v.
McKinney, 79 F.3d 105, 108 (8th Cir. 1996), judgment vacated on other grounds, 520
U.S. 1226 (1997); United States v. Smith, 62 F.3d 641, 650-51 (4th Cir. 1995).
Additional grounds raised in amendments, supplements or renewals of a timely motion
for new trial are procedurally barred if not asserted within the seven-day time limit
unless the district court grants an extension before the original seven-day period has
expired. United States v. Flynn, 196 F.3d 927, 931-32 (8th Cir. 1999).

        Generally, we strictly apply the time limits of Rule 33 when considering
supplements to motions for new trial, especially when the newly articulated claim
alleges a very different violation of the defendant’s rights than that contained in the
original timely motion. See Flynn, 196 F.3d at 931-32. Recently, however, we applied
a reasonable construction of the facts, “so as to allow the defendants sufficient time for
filing to avoid a jurisdictional time bar” predicated on a “technical misunderstanding.”
United States v. Cruz-Padilla, 227 F.3d 1064, 1067 (8th Cir. 2000). In that case, while
we recognized the strict construction generally given to Rule 33's jurisdictional time
limit, we found that applying such rigidity in that instance would merely subordinate
the defendant’s right to a fair trial while effecting no meaningful rule-based purpose.
Id. at 1067-68.




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        Villalpando timely filed a motion for new trial alleging numerous instances of
trial counsel error in support of his claim that he was denied the effective assistance of
counsel. The district court did not rule on the original timely-filed motion and no
extension of time was granted within the seven-day period allowed by the rule.
However, the district court subsequently appointed new counsel and requested
supplementation of the timely motion for new trial because it had been filed by trial
counsel and other instances of ineffectiveness might need to be examined. The
supplemental motion filed by the defendant’s new counsel focused solely on the claim
of ineffective assistance, adding a specific allegation that trial counsel was ineffective
in eliciting prejudicial statements during his cross-examination of Dlouhy. This
allegation did not raise any new constitutional violation. The original timely-filed
motion for new trial had already alleged errors that occurred during trial counsel’s
cross-examination of Dlouhy, as well as numerous other instances of ineffective
assistance of counsel. The supplemental motion permitted by the district court merely
specified another instance in support of the ineffective assistance claim–a claim
previously timely raised. We conclude that a reasonable construction of the
circumstances surrounding the motion for new trial and its supplement is warranted in
this case and that the district court had jurisdiction to consider matters raised in the
supplemental motion in ruling on Villalpando’s motion for new trial.

                                           III.

       On the merits, we review the district court’s ruling on a motion for new trial
based on a claim of ineffective assistance of counsel for abuse of discretion. United
States v. Jackson, 204 F.3d 812, 815 (8th Cir. 2000). In order to establish a claim of
ineffective assistance of counsel, the defendant must show that counsel’s performance
fell below an objective standard of reasonable competence, and that the deficient
performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687
(1984).

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         First, the government argues the court erred by failing to hold a hearing on trial
counsel’s strategy. Normally, a collateral postconviction action under 28 U.S.C.
§ 2255 is the appropriate means for raising a claim of ineffective assistance of counsel
and for developing a record sufficient to examine counsel’s performance. Jackson, 204
F.3d at 815. The district court, however, may consider the claim on a motion for new
trial if it has developed an adequate record on the issue. United States v. Stevens, 149
F.3d 747, 748 (8th Cir.), cert. denied, 525 U.S. 1009 (1998). The district court
witnessed trial counsel’s conduct during the entire trial and noted it was of poor quality.
It is doubtful whether allowing further record to be presented concerning trial counsel’s
strategy would alter the court’s conclusion that no competent counsel would have
elicited the damaging testimony. Upon review of the entire record, we find it was
sufficiently developed for the district court to rule on the motion for new trial in this
case.

       Second, the government asserts Villalpandos’ trial counsel’s cross-examination
of Dlouhy was part of an acceptable strategy to attack her credibility. We generally
entrust cross-examination techniques, like other matters of trial strategy, to the
professional discretion of counsel. Henderson v. Norris, 118 F.3d 1283, 1287 (8th Cir.
1997), cert. denied, 522 U.S. 1129 (1998); see also Flieger v. Delo, 16 F.3d 878, 887
(8th Cir.) (holding cross-examination that elicited testimony of defendant’s violent
character and reputation was reasonable trial strategy where intended to discredit the
witnesses’ testimony by showing bias against the defendant), cert. denied, 513 U.S.
946 (1994). Some strategy decisions, however, are so unreasonable that they can
support a claim of ineffective assistance of counsel. See Crotts v. Smith, 73 F.3d 861,
866 (9th Cir. 1996) (holding trial counsel was ineffective for failing to object to
testimony indicating that the defendant had told a third party he was wanted for “killing
a cop”); Ward v. United States, 995 F.2d 1317, 1318-19 (6th Cir. 1993) (holding trial
counsel was ineffective where counsel’s cross-examination of a government witness
opened the door for evidence of defendant’s character and propensity to make pipe
bombs).

                                            5
      We find no abuse of discretion in the district court’s conclusion that trial
counsel’s cross-examination of Dlouhy fell below an objective standard of reasonable
competence, the first prong of the Strickland analysis. Trial counsel elicited testimony
from Dlouhy tending to establish Villalpando’s character as threatening and murderous.
We agree with the district court that, in the circumstances of this drug-related
prosecution, such evidence had absolutely no strategic value for the defendant.

        Third, the government asserts any errors by trial counsel did not prejudice
Villalpando. To establish prejudice, the second prong of the Strickland analysis,
Villalpando must demonstrate that there is a "reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. Prejudice is not shown if the evidence is so strong that the
outcome of the case could hardly have been other than a verdict of guilty. Goeders v.
Hundley, 59 F.3d 73, 77 (8th Cir. 1995).

       The district court found counsel’s cross-examination of Dlouhy inherently
unsound and unreasonable and, considering the entire context, this undermined the
court’s confidence in the outcome of the trial. We conclude the district court acted
within its sound discretion in determining that but for the evidence trial counsel elicited
from Dlouhy, there is a reasonable probability that the jury would have returned a
different verdict on the drug conspiracy charge of Count 1.

      As to the firearm convictions, however, we fail to find prejudice to the defense
from Dlouhy’s testimony. Count 3 of the indictment charged that Villalpando, a felon,
knowingly possessed a Marlin 30-30 caliber rifle that had been transported in interstate
commerce. Count 4 charged that Villalpando, a felon, knowingly possessed a J.C.
Stevens shotgun that had been transported in interstate commerce. As the government
points out, Villalpando stipulated he was a prior felon and that the weapons involved
had been transported across state lines. Furthermore, he admitted on cross-examination
by the government that he had possessed the weapons in question. Because

                                            6
Villalpando stipulated he was a felon and because Villalpando admitted in open court
that he possessed the weapons in question, we cannot say that trial counsel’s improper
cross-examination of Dlouhy adversely influenced the outcome as to the firearm
charges in Counts 3 and 4. See United States v. Hill, 864 F.2d 601, 603-04 (8th Cir.
1988) (finding no prejudice from trial counsel’s errors where defendant’s own
statements established his possession of firearms that formed the basis of the weapons
possession charges against him), cert. denied, 489 U.S. 1089 (1989). Thus,
Villalpando has failed to meet the prejudice prong of the Strickland test as to Counts
3 and 4.

                                          IV.

       Accordingly, we affirm the order of the district court granting Alejandro
Villalpando a new trial on Count 1. We reverse the grant of a new trial on Counts 3
and 4 and remand to the district court with directions to enter a judgment of conviction
on each of those counts, and for sentencing thereon.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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