         10-3078-cr
         United States v. DeJohn

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16th day of February, two thousand twelve.
 5
 6       PRESENT: BARRINGTON D. PARKER,
 7                RICHARD C. WESLEY,
 8                RAYMOND J. LOHIER, JR.,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                     Appellee,
16
17                      -v.-                                         10-3078-cr
18
19       ALEXANDER CAMMACHO, AKA ALEXANDER ELLIOT, AKA ALEX CAMMACHO,
20       ERIC ALPETER, JASON ALPETER, RODERICK LONGO, CHRISTOPHER
21       SMITH, BRIAN A. MERRIFIELD, JUSTIN BENEVENTO, RICHARD
22       WARREN, JAMIE PHILLIPS, JOSHUA YOUNG, JOHN BERARDI, FRANK
23       LETIZIA, CHRISTOPHER RAWLINS, MICHAEL HIRSCH,
24
25                                     Defendants,
26
27       ANTHONY DEJOHN,
28
29                                     Defendant-Appellant.
30
31
32
33
 1   FOR APPELLANT:    STANLEY L. COHEN, Stanley Cohen &
 2                     Associates, LLC, New York, NY.
 3
 4   FOR APPELLEE:     PAUL D. SILVER, Assistant United States
 5                     Attorney (Lisa M. Fletcher, Carl G.
 6                     Eurenius, Assistant United States
 7                     Attorneys, on the brief), for Richard S.
 8                     Hartunian, United States Attorney for the
 9                     Northern District of New York, Albany,
10                     NY.
11
12        Appeal from the United States District Court for the
13   Northern District of New York (Mordue, J.).
14
15       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

16   AND DECREED that the judgment of the district court be

17   AFFIRMED.

18       Anthony DeJohn (“Appellant”) appeals from a judgment in

19   the United States District Court for the Northern District

20   of New York (Mordue, J.), convicting him, after a jury

21   trial, of conspiracy to distribute and to possess with the

22   intent to distribute marijuana in violation of 21 U.S.C.

23   § 846 and possession of firearms by a convicted felon in

24   violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).    We

25   assume the parties’ familiarity with the underlying facts,

26   the procedural history, and the issues presented for review.

27       We find no error in the district court’s dismissal of

28   Appellant’s motion for a new trial.   At that time, Federal

29   Rule of Criminal Procedure 33(b)(2) provided a seven-day


                                  2
1    filing period for “[a]ny motion for a new trial grounded on

2    any reason other than newly discovered evidence.”1                 See

3    United States v. Mayo, 14 F.3d 128, 132 (2d Cir. 1994).

4    Appellant’s Rule 33 motion was untimely, and he did not

5    allege "excusable neglect" for his failure to meet the

6    filing deadline.       See United States v. Robinson, 430 F.3d

7    537, 541 (2d Cir. 2005); Fed. R. Crim. P. 45(b)).

8          Appellant asserts that his motion for a new trial was

9    based on “newly discovered evidence” and thus the two-year

10   filing period under Rule 33(b)(1) applied.2               Appellant’s

11   motion and subsequent request to reopen the district court’s

12   hearing on the motion were grounded in a claim of

13   ineffective assistance of trial counsel.              “[I]neffective

14   assistance claims do not present new evidence within the

15   meaning of Rule 33.”        United States v. Castillo, 14 F.3d

16   802, 805 (2d Cir. 1994).         “The longer period provided by the

17   Rule for a motion based on newly discovered evidence . . .

18   applies only to motions that address the issues raised by

19   the criminal charges, not to motions that raise collateral



           1
            A 2009 amendment to Rule 33(b)(2) extended this filing period to
     fourteen days.
           2
            A 2008 amendment to Rule 33(b)(1) extended this two-year filing period
     to three years.

                                           3
1    issues such as the effectiveness of trial counsel."     Mayo,

2    14 F.3d at 132 (emphasis added).     The district court did not

3    err in declining to reach the merits of Appellant’s motion.

4        We also decline to address Appellant’s ineffective

5    assistance claim on direct review.     Where “the record on

6    appeal does not include the facts necessary to adjudicate a

7    claim of ineffective assistance of counsel, our usual

8    practice is not to consider the claim on the direct appeal,

9    but to leave it to the defendant to raise the claims on a

10   petition for habeas corpus under 28 U.S.C. § 2255.”     United

11   States v. Oladimeji, 463 F.3d 152, 154 (2d Cir. 2006).

12   Should Appellant choose to further pursue his ineffective

13   assistance claim, habeas proceedings will provide “the forum

14   best suited to developing the facts necessary to determining

15   the adequacy of representation.”     See Massaro v. United

16   States, 538 U.S. 500, 505 (2003).

17       Finally, the district court correctly determined that

18   Appellant must serve a term of life without release.     The

19   district court properly found that Appellant’s conviction

20   requires a mandatory life sentence under 21 U.S.C.

21   § 841(b)(1)(A) because Appellant had committed two prior

22   felony drug offenses that were not part of a “single


                                  4
1   criminal episode.”   See United States v. Powell, 404 F.3d

2   678, 682 (2005).

3       For the foregoing reasons, the judgment of the district

4   court is hereby AFFIRMED.

5
6                               FOR THE COURT:
7                               Catherine O’Hagan Wolfe, Clerk
8
9




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