       CLD-040                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 17-2549
                                      ___________

                            UNITED STATES OF AMERICA

                                             v.

                                   ED JOHNSON,
                                           Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                               for the District of Delaware
                     (D.C. Criminal Action No. 1-08-cr-00146-001)
                      District Judge: Honorable Leonard P. Stark
                      ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  November 2, 2017

     Before: CHAGARES, GREENAWAY, JR. and GREENBERG, Circuit Judges


                            (Opinion filed: January 22, 2018)
                                       _________

                                        OPINION *
                                        _________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
         Ed Johnson, a federal prisoner, appeals pro se from the District Court’s order

denying his motion for a new trial under Rule 33 of the Federal Rules of Criminal

Procedure. We will affirm.

         On October 30, 2009, a jury found Johnson guilty of mail and wire fraud,

conspiracy to commit wire fraud, and money laundering, and the District Court sentenced

him to 120 months of imprisonment. We affirmed. See United States v. Johnson, 449 F.

App'x 149 (3d Cir. 2011). In 2012, Johnson filed a 28 U.S.C. § 2255 motion. The

District Court denied Johnson’s motion, and we declined to issue a certificate of

appealability. See C.A. No. 13-3758. In 2016, we denied Johnson’s application under 28

U.S.C. § 2244 for an order authorizing the District Court to consider a second or

successive § 2255 motion. See C.A. No. 15-2825.

         In March 2017, Johnson filed a Rule 33 motion, arguing that he is entitled to a

new trial because a March 7, 2014 United States Tax Court decision/stipulation, see Doc.

No. 354 at 49-50, constitutes newly discovered evidence which demonstrates that he is

innocent of the crimes of conviction. 1 The convictions stemmed from Johnson’s false

claims that he had the ability to fund commercial loans, and Johnson argues that the 2014

document shows that his tax returns were not false, and he thus had the financial ability

to fund the loans as issue in the indictment. The District Court denied the motion as

untimely, and further concluded that it was, in any event, meritless.



1
    Johnson previously presented this document in his § 2244 application.
                                            2
       “We review the District Court’s denial of a motion for a new trial for abuse of

discretion.” United States v. Schneider, 801 F.3d 186, 201 (3d Cir. 2015). Where a Rule

33 motion is based on newly-discovered evidence, the movant shoulders a “heavy

burden,” see United States v. Brown, 595 F.3d 498, 511 (3d Cir. 2010), of proving five

elements: “(a) [T]he evidence must be in fact newly discovered, i.e.[,] discovered since

trial; (b) facts must be alleged from which the court may infer diligence on the part of the

movant; (c) the evidence relied on must not be merely cumulative or impeaching; (d) it

must be material to the issues involved; and (e) it must be such, and of such nature, as

that, on a new trial, the newly discovered evidence would probably produce an acquittal,”

Schneider, 801 F.3d at 201-02.

       Johnson’s motion, which was filed more than 7 years after his conviction, was

filed well outside of the limitations period prescribed by Rule 33. See Fed. R. Crim. P.

33(b)(1) (stating that “[a]ny motion for a new trial grounded on newly discovered

evidence must be filed within 3 years after the verdict or finding of guilty.”). But there is

nonetheless a question as to whether the District Court could simply dismiss the motion

as untimely. Relevant here, it is unclear whether the time limitation contained in Rule

33(b)(1) is jurisdictional or claims-processing. In United States v. Coleman, 811 F.2d

804 (3d Cir. 1987), we held that “[t]he time limit for filing motions under Rule 33 is

jurisdictional [such that] a district court is powerless to entertain such motions out of

time.” Id. at 807. Since Coleman, however, the Supreme Court has held that the time

limitation contained in Rule 33(b)(2), which applies to motions for a new trial based on
                                              3
any reason other than newly discovered evidence, is not jurisdictional and is instead a

claims-processing rule that can be forfeited. See Eberhart v. United States, 546 U.S. 12,

13 (2005). And though we have yet to address the issue precedentially, other courts have

concluded that this reasoning also applies to Rule 33(b)(1) motions based on newly

discovered evidence. See, e.g., United States v. Berry, 624 F.3d 1031, 1042 (9th Cir.

2010).

         If Rule 33(b)(1) is to be considered a claims-processing rule, its protection is

subject to forfeiture if not properly invoked by the Government. See, e.g. Eberhart, 546

U.S. at 13. Here, the Government did not file a response to the motion, and thus did not

specifically object to its timeliness. Nonetheless, under the circumstances of this case,

specifically the four-year delay in filing the motion after the limitations period had run, it

may be that the District Court could sua sponte invoke Rule 33(b)(1)’s time limit and

dismiss the motion as untimely. Cf. Gov’t of the V.I. v. Martinez, 620 F.3d 321, 329 n.6

(3d Cir. 2010) (leaving unresolved the question of whether this Court could sua sponte

invoke the time limit prescribed by Federal Rule of Appellate Procedure 4(b), a claims-

processing rule, but suggesting that a case of “inordinate” delay might be an appropriate

circumstance).

         If the District Court appropriately invoked the time limit sua sponte, Johnson’s

arguments for equitable tolling, assuming equitable tolling applies to Rule 33 motions,

would not change the outcome. Johnson contends that equitable tolling is warranted

because he pursued his rights diligently by obtaining the 2014 decision/stipulation, after
                                                4
which the “eighteen month delay [during] which [he] conducted more due diligence

research of several cases [] in order to articulate his case to the [district] court”

constitutes extraordinary circumstances. But the time that he spent researching issues

constitutes a “garden variety claim of excusable neglect,” not extraordinary

circumstances. See, e.g., Jenkins v. Sup’t of Laurel Highlands, 705 F.3d 80, 89 n.16 (3d

Cir. 2013) (quoting Holland v. Florida, 560 U.S. 631, 651 (2010)).

       In any event, even if the District Court could not properly invoke Rule 33(b)(1)’s

time limit absent a motion by the Government, it properly denied Johnson’s motion as

meritless. As an initial matter, the 2014 decision/stipulation does not even constitute

evidence which was “newly discovered”; the document is simply a stipulation between

Johnson and the IRS, signed by both parties in February 2014, that the United States Tax

Court may enter a decision “sustain[ing] in full” two notices of determination concerning

collection actions the IRS issued, respectively, in April 2009 (six months before trial) and

June 2010 (nine months after trial), regarding Johnson’s and his wife’s tax liabilities for

each taxable year from 1999 to 2006. And even if the 2014 decision/stipulation could be

considered newly discovered, it would not produce an acquittal, as it does not

demonstrate that Johnson’s tax returns were authentic, and, thus, he had the means to

repay the victims in his fraud scheme. And, in this regard, we note that Johnson

presented expert testimony at trial and had the opportunity to demonstrate the authenticity

of prior tax returns, as well as his financial wherewithal at the time of the scheme.

       For the above reasons, we will affirm the judgment of the District Court.
                                               5
