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Group 33 who arrested him and testified at his trial (the "DEA Agents")
constituted newly discovered evidence warranting a new trial. Romero
contended that he could have used the information in the newspaper article to
impeach the testimony of the DEA Agents.
3
The key term is "final judgment." Persuasive authority holds that when an
appeal is taken from a criminal conviction, it is not the date of the entry of the
judgment of conviction, but rather the date of the issuance of the mandate of
affirmance by the appellate court, which governs. See 3 Charles A. Wright,
Federal Practice and Procedure: Criminal 2d Sec. 558 at 361 (2d ed. 1982 &
Supp.1994); United States v. Dayton, 981 F.2d 1200, 1202 (11th Cir.1993)
(collecting cases from the First, Third, Seventh, Eighth, Ninth, Tenth and
District of Columbia Circuits); United States v. Biaggi, 823 F.Supp. 1151, 1160
(S.D.N.Y.1993); Alvarez v. United States, 808 F.Supp. 1066, 1089
(S.D.N.Y.1992); United States v. Mallah, 427 F.Supp. 328, 331 (S.D.N.Y.),
aff'd mem., 559 F.2d 1205 (2d Cir.1977). No circuit court has ruled contrary to
this authority, and we see no reason to do so. Thus, insofar as Romero's Rule 33
motion was based upon the ground of newly discovered evidence, it was not
time-barred.
finding.
6
Moreover, all of the other claims set forth in Romero's application to vacate his
conviction could not be presented by a Rule 33 motion because they are not
subject to the two-year period under Rule 33 for claims of newly discovered
evidence, but rather to a seven-day limit under that rule. Judge Ward addressed
the remaining claims, and found them either frivolous or previously presented
and rejected. We agree with that assessment.
Romero seeks on this appeal, and has filed a separate motion, to have us direct
the district court to correct the record to indicate that the application denied by
the order from which this appeal is taken was a Rule 33 motion, rather than a
Sec. 2255 petition. Romero presumably believes that this distinction might
conceivably bear upon any future application that he might make pursuant to
Sec. 2255, which provides that "a sentencing court shall not be required to
entertain a second or successive motion for similar relief on behalf of the same
prisoner." In any event, the publication of this opinion provides all the
"correction" that the situation requires.
Accordingly, the order of the district court that denied Romero's application to
vacate his conviction is affirmed. Romero's motion to correct the district court
record is denied as moot.
The Honorable Shirley Wohl Kram, United States District Judge for the
Southern District of New York, sitting by designation