UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 96-7389

MELVIN SANDERS, a/k/a Pops,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
N. Carlton Tilley, Jr., District Judge.
(CR-93-281)

Submitted: February 27, 1997

Decided: March 18, 1997

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

J. Steven Brackett, RUDISILL & BRACKETT, P.A., Hickory, North
Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,
Robert M. Hamilton, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Melvin Sanders appeals the district court's denial of his motion
filed pursuant to Fed. R. Crim. P. 33. Because we find that Sanders's
new trial motion was untimely, we affirm the district court's denial
of the motion on the grounds that it lacked jurisdiction to hear the
claim.

A jury found Melvin Sanders guilty of drug trafficking and money
laundering, and the court sentenced him to imprisonment. On appeal,
this Court affirmed Sanders's conviction and sentence. Thereafter,
Sanders moved for a new trial based on newly discovered evidence
pursuant to Fed. R. Crim. P. 33. Because Sanders's motion for new
trial based on ineffective assistance of counsel was not brought within
the required time period, the district court denied the motion, finding
that it was untimely and that jurisdiction was lacking. Sanders
appealed, contending that the district court erred when it failed to hold
an evidentiary hearing prior to denying the motion.

A district court's decision denying an evidentiary hearing in con-
nection with a new trial motion is reviewed for an abuse of discretion.
United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995). A motion
for new trial based on ineffective assistance of counsel may be
brought as a motion for new trial based on "other grounds" under Fed.
R. Crim. P. 33 within seven days of the verdict or within such further
time as may, within that period, be fixed. Smith , 62 F.3d at 650-51.
After the seven day time period for filing new trial motions based on
any other grounds has expired, a new trial motion based on ineffective
assistance of counsel will not lie because ineffective assistance claims
do not count as "evidence" for purposes of Rule 33's two-year time
limit. Id. at 651; see Fed. R. Crim. P. 33.

Sanders filed his motion for new trial based on ineffective assis-
tance of counsel more than a year after final judgment. Because we
determine that Sanders's new trial motion was untimely, we conclude
that the court did not abuse its discretion in denying an evidentiary
hearing prior to dismissing the motion. We therefore affirm the dis-
trict court's order.

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We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid in the decisional process.

AFFIRMED

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