CLD-209                                                           NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 15-4029
                                         ___________

                              UNITED STATES OF AMERICA

                                               v.

                                    ANDRE WARE,
                                             Appellant
                         ____________________________________

                       On Appeal from the United States District Court
                           for the Eastern District of Pennsylvania
                          (D.C. Criminal No. 2:08-cr-00625-001)
                          District Judge: Honorable Jan E. DuBois
                        ____________________________________

    Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P.
             10.6 or a Decision on the Issuance of a Certificate of Appealability
                                        April 7, 2016

                 Before: FISHER, JORDAN and VANASKIE, Circuit Judges

                                (Opinion filed: April 18, 2016)
                                         _________

                                           OPINION*
                                           _________

PER CURIAM

         Andre Ware, a pro se inmate, appeals the District Court’s order dismissing his


*
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
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document titled “judicial notice of adjudicative facts” and denying his motion for an

evidentiary hearing. Because this appeal presents no substantial question, we will

summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       In August 2009, Ware was convicted of several drug offenses involving crack

cocaine, and the District Court, after granting Ware a downward variance, sentenced him

to 128 months’ imprisonment. Ware’s conviction and sentence were affirmed on appeal.

United States v. Ware, 450 F. App’x 94 (3d Cir. 2011). Ware has since engaged in

various efforts to again challenge his conviction and to have his sentence reduced—

including multiple unsuccessful motions to vacate, set aside, or reduce his sentence filed

pursuant to 28 U.S.C. § 2255.

       In August 2015, Ware filed two documents in the District Court: a “Judicial

Notice of Adjudicative Facts” and a “Motion for Evidentiary Hearing.” The factual basis

for these motions was Ware’s statement that he had learned one of the officers that

testified at his trial had been charged with perjury and other offenses arising out of

misconduct in an unrelated drug case. The government responded, noting that Ware’s

motions were effectively a challenge to his conviction and sentence, and that the

evidentiary rules concerning “judicial notice” in litigation were not the correct legal

means to bring the type of challenge at issue. Rather, the government explained, Ware’s

request for relief could be construed either as a second or successive § 2255 motion or as

a motion for new trial under Rule 33(b)(1) of the Federal Rules of Criminal Procedure.


constitute binding precedent.                 2
       The District Court agreed with that latter characterization of the relief that Ware

sought, dismissed the judicial notice of adjudicative facts with prejudice, and denied the

motion for an evidentiary hearing. Ware moved for reconsideration, and the District

Court denied that motion. This appeal followed.

       We have jurisdiction under 28 U.S.C. § 1291. When an appeal requires a

certificate of appealability, we must deny the request for a certificate of appealability if

reasonable jurists would not debate whether the petition or motion at issue states a valid

claim of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); Slack v.

McDaniel, 529 U.S. 473, 484 (2000). We review the denial of a motion for a new trial

pursuant to Federal Rule of Criminal Procedure 33(b)(1) for an abuse of discretion.

United States v. Schneider, 801 F.3d 186, 201 (3d Cir. 2015). Generally, our review of

an order denying a motion for reconsideration is for an abuse of discretion, but to the

extent the denial is based on the interpretation or application of law, our review is

plenary. See Koshatka v. Phila. Newspapers, Inc., 762 F.2d 329, 333 (3d Cir. 1985). We

may summarily affirm the District Court’s rulings if there is no substantial question

presented on appeal. 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

       As an initial matter, we agree with the District Court’s decision not to construe

Ware’s motions as a § 2255 motion, so no certificate of appealability is required here.

We observe, however, that the District Court was correct to conclude that if Ware had

brought a § 2255 motion, it would have been a second or successive motion that required

this Court’s prior authorization to file. See 28 U.S.C. § 2255(h).
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       Construing Ware’s filings as a motion for a new trial, we agree with the District

Court’s determination that they set out no valid basis for relief. First, Ware brought his

motion too late. Ware was convicted on August 5, 2009, and therefore missed the three-

year deadline to file his motion. See Fed. R. Crim. P. 33(b)(i). Moreover, we agree that

the evidence was merely impeaching, which precludes granting Ware a new trial. See

Schneider, 801 F.3d at 201-02. The District Court thus did not abuse its discretion in

denying Ware any relief.

       Moreover, as Ware’s motion for reconsideration essentially restated his arguments

concerning “judicial notice” under the Rules of Evidence, the District Court did not abuse

its discretion in declining to reconsider its order. See Harsco Corp. v. Zlotnicki, 779 F.2d

906, 909 (3d Cir. 1985) (“The purpose of a motion for reconsideration is to correct

manifest errors of law or fact or to present newly discovered evidence.”).

       Because the appeal presents no substantial question, we will summarily affirm the

District Court’s order. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.




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