States, 154 U.S. App. D.C. 196, 474 F.2d 444, 451 (1972). Considering the petition under § 2255 we have concluded that "the motion and the files and records conclusively show that the prisoner is entitled to no relief" and, accordingly, an evidentiary hearing is not required.
The theory presented by petitioner in his petition and affidavits -- i.e., that his twin-brother was really the guilty party
-- is not new to this case. At his original trial in May, 1968, petitioner took the witness stand in his own defense and identified his twin-brother Alvin (Trial Tr. p. 520), who was present in court but did not testify.
Petitioner testified that he had purchased the glassine packets for his brother, Alvin. He explained that his fingerprints got on some of these packets when he picked them up after they spilled from their box. He testified that he had delivered the packets to Alvin empty; that he knew nothing about the heroin "someone" subsequently placed in them. Obviously, the "newly" discovered material set forth in the affidavits relates to an issue clearly decided against petitioner at his original trial, and his petition amounts to an effort to obtain a retrial on that issue at which, perhaps, he could now call Alvin and McDaniels.
Because more than two years have elapsed since petitioner exhausted the appellate process and his conviction became final, we agree with him that a motion based on newly discovered evidence under Rule 33, Fed. R. Crim. P., is untimely.
However, we disagree with petitioner that his petition for coram nobis relief, which as stated above we treat under § 2255, is an adequate substitute for a timely Rule 33 motion. We have found no case, nor do we believe one exists, which would entitle petitioner to a hearing and determination of the merits of his petition in a collateral proceeding under either § 2255 or a writ of error coram nobis. To the contrary, it appears well established that newly discovered evidence, even in the form of a confession of another is not grounds for either type of relief.
For this reason alone, petitioner is not entitled to a hearing on his allegations at this late stage of the proceedings, and his sole remaining recourse for relief because of "newly" discovered evidence is an appeal to executive clemency. Cf. Hauck v. Hiatt, 141 F.2d 812 (3rd Cir. 1944).
Moreover, even if petitioner's motion was timely and could be considered under Rule 33, Fed. R. Crim. P., the "newly" discovered evidence alleged, coming as it does largely from petitioner's brother Alvin after the statute of limitations has run, is inherently suspect and entitled to little weight. This conclusion is strengthened by the fact that the affidavit of Alvin conflicts significantly with the trial testimony of the two police officers who testified they stopped the petitioner on the night of March 15, 1967. The affidavit of Alvin does not mention that when stopped he told the officers he had discarded the bag and helped them try to locate it; but rather, Alvin's version is that he categorically denied knowledge of any bag. The affidavit of petitioner's brother, Alvin, obviously cannot be reconciled with the trial testimony of the two officers, who did not know the petitioner, and had no apparent motive to fabricate a story which would unjustly incriminate him. This, combined with the fact that Alvin was present and available at the trial, and if petitioner had exercised due diligence, Alvin's testimony could then have been submitted to the jury, leads to the conclusion that even under Rule 33 petitioner would not be entitled to a hearing on his present allegations. United States v. Bujese, 371 F.2d 120, 125 (3rd Cir. 1967).
In addition, it appears from the affidavit accompanying the petition that petitioner was aware of the "newly discovered evidence" prior to the Rule 33 hearing on November 17, 1970, and the § 2255 hearing on April 4, 1973.
His failure to call this known evidence to the attention of the court at either former hearing bars him from now offering it at another hearing. It is to be observed that in neither of his former petitions under Rule 33 and § 2255 does he allege that his brother, Alvin, was the man the police stopped on March 15, 1967. That he would have known of this information for over three years and fail to allege it in either of his former petitions is not only indicative of a recent fabrication, but also, if true, is patently inexcusable, barring any relief.
An appropriate order will be entered.