CLD-268                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-1510
                                      ___________

                           UNITED STATES OF AMERICA

                                            v.

                               JOHN FELDER, a/k/a BO

                                 JOHN FELDER,
                                            Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         (D.C. Crim. No. 2-06-cr-00079-001)
                     District Judge: Honorable Gene E. K. Pratter
                     ____________________________________

          Submitted for a Decision on Issuance of a Certificate of Appealability
            Under 28 U.S.C. § 2253(c)(1) and for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                      June 6, 2013
            Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

                             (Opinion filed: June 19, 2013 )
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      John Felder appeals pro se from the District Court’s order denying what it treated

as a motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure.
We will affirm.

       A jury found Felder guilty of numerous federal drug and firearm offenses, and the

District Court sentenced him to 264 months of imprisonment. We affirmed. See United

States v. Felder, 389 F. App’x 111 (3d Cir. 2010). As we noted in rejecting Felder’s

sufficiency-of-the-evidence challenges, the evidence against him was “overwhelming,”

id. at 115, and included the testimony of two co-defendants who pleaded guilty and the

arresting officer, Kenneth Oglesby, see id. at 113-14. This evidence was so compelling

that we did not need to mention that the evidence against Felder also included the

testimony of Richard Cujdik, the Philadelphia Police Department’s lead investigator in

the state investigation from which Felder’s federal charges arose.

       Felder later filed the motion at issue here, which he captioned as one under 28

U.S.C. § 2255. Felder relied on a series of Philadelphia Daily News articles entitled

“Tainted Justice” that ran in 2009 while his appeal was pending. Those articles concern

allegations of misconduct against various Philadelphia Police Officers, including

allegations concerning Officer Cujdik’s conduct in an unrelated case. Felder did not

provide the articles, but he asserted that their contents showed that (1) he was denied due

process because the testifying officers committed perjury, and (2) he is actually innocent.

The Government responded by arguing, inter alia, that Felder defaulted his claims by not

raising them on appeal and that there were no grounds for Rule 33 relief because Felder’s

motion was untimely and lacked merit. In reply, Felder asserted that appellate counsel’s

ineffectiveness constituted cause for any default and that the Government failed to
                                             2
“disclose” an investigation begun after publication of the articles in violation of Brady v.

Maryland, 373 U.S. 83 (1963).

       By order entered January 3, 2013, the District Court treated Felder’s motion as one

for a new trial under Rule 33, denied it as untimely because Felder filed it more than

three years after his conviction, see Fed. R. Crim. P. 33(b)(1), and also explained that the

motion lacks merit because the articles constitute merely impeaching evidence as to

Officer Cujdik and bear no relation to the arresting officer or Felder’s co-defendants. See

United States v. Quiles, 618 F.3d 383, 388-89 (3d Cir. 2010) (holding that Rule 33

requires, inter alia, new evidence that is not merely impeaching and that “would probably

produce an acquittal”) (quotation marks omitted). The District Court further declined to

treat Felder’s motion as one under §2255 because it concluded that he had not stated a

cognizable § 2255 claim. Felder appeals.1

       Felder does not take issue with the District Court’s conclusions that his motion

was both untimely and meritless, and we agree with the District Court’s rulings on those

issues with the one caveat noted in the margin.2 Instead, Felder argues that the District


1
 We have jurisdiction under 28 U.S.C. § 1291. Felder does not require a certificate of
appealability because the District Court treated his motion as one under Rule 33 rather than §
2255. See United States v. Campbell, 463 F.3d 1, 2 (D.C. Cir. 2006). We review the District
Court’s denial of a Rule 33 motion for abuse of discretion, though we review issues of law de
novo. See Quiles, 618 F.3d at 390.
2
 The District Court, relying on our decision in United States v. Coleman, 811 F.2d 804, 807 (3d
Cir. 1987), characterized the three-year deadline under Rule 33(b)(1) as “jurisdictional.” Since
Coleman, however, the Supreme Court has held that the time limitation contained in Rule
33(b)(2) is not jurisdictional and is instead a claims-processing rule that can be waived. See
Eberhart v. United States, 546 U.S. 12, 13 (2005). We have not addressed the issue
                                                    3
Court should have treated his motion as one under § 2255 and liberally construed it to

raise constitutional claims. We discern no error in that regard.

       As a threshold matter, Felder argues that the District Court erred under Castro v.

United States, 540 U.S. 375 (2003), by recharacterizing his putative § 2255 motion as one

under Rule 33 without his permission. Felder reads Castro backwards. Castro holds that

courts must provide notice and an opportunity to withdraw before recharacterizing as a §

2255 motion a motion captioned as something else. See id. at 383. That is because

recharacterizing a motion as a § 2255 motion implicates the provisions of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) restricting the ability

to file subsequent § 2255 motions. See id. at 381-83. There is no similar concern with

recharacterizing a motion as one under Rule 33. To the contrary, the fact that the District

Court did not treat Felder’s motion as a § 2255 motion means that it does not count as

such a motion for purposes of AEDPA’s second-or-successive provisions.3

       Felder also argues that the District Court erred in failing to construe his motion to

raise constitutional claims, but we again discern no error because none of Felder’s

purportedly constitutional claims is even colorable. Felder argues that he raised a Brady

claim, but the District Court properly explained that there was no basis for such a claim

precedentially, but other courts have concluded that the same applies to Rule 33(b)(1) as well.
See, e.g., United States v. Berry, 624 F.3d 1031, 1042 (9th Cir. 2010). Even if Rule 33(b)(1) is
not jurisdictional, however, it remains mandatory if properly invoked, see Eberhart, 546 U.S. at
17, and the Government properly invoked it in this case.
3
  It appears that any § 2255 motion would now be untimely under AEDPA’s statute of
limitations (of which Felder received notice in the standard § 2255 form he used), see 28 U.S.C.
§ 2244(d), though we need not and do not decide that issue.
                                                 4
because the articles in question were published and precipitated an investigation only

after Felder’s trial. Felder argues that he also raised a claim of appellate counsel’s

ineffectiveness, which he did for the first time in reply and only as a ground to excuse a §

2255 default. There is no basis for a claim of appellate counsel’s ineffectiveness,

however, because new evidence generally is not a ground for appellate relief and, even if

it were, Felder could not have been prejudiced because we did not rely on or even

mention Officer Cujdik’s testimony in affirming his convictions and sentence. Felder

also asserts for the first time on appeal that trial counsel too was ineffective in failing to

investigate these matters, but he did not raise that claim in the District Court and there is

no basis for it because, once again, the articles in question post-date his trial.

       Finally, Felder argues that the articles prove his innocence. Neither we nor the

Supreme Court have ever held that actual innocence by itself is a cognizable

constitutional claim. See Sistrunk v. Rozum, 674 F.3d 181, 187 n.2 (3d Cir. 2012). Even

if it were, the articles do not relate to any of the evidence we held sufficient to support

Felder’s conviction and thus come nowhere close to showing that “no reasonable juror

would have voted to convict.” Id. at 191 (citing Schlup v. Delo, 513 U.S. 298, 324, 327

(1995)).

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




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