The opinion of the court was delivered by: N o r m a L . S h a p i r o , J .
After a jury trial, defendant Robert Earl Martin ("Martin") was convicted of armed bank robbery and using and carrying a firearm during a bank robbery. Because Martin was previously convicted of two violent felonies, he was sentenced to life imprisonment under the "Three Strikes" statute, 18 U.S.C. § 3559(c).Before the court is Martin's pro se Motion for New Trial (paper no. 118) under Federal Rule of Criminal Procedure 33. For the reasons set forth below, the Motion will be denied.
I. FACTS AND PROCEDURAL HISTORY
On March 6, 1998, a man with a double-barreled sawed-off shotgun robbed United Bank, 2820 West Girard Avenue, Philadelphia, Pennsylvania. Surveillance cameras at United Bank photographed the bank-robber. An informant told Philadelphia Police Detective Mary Seifert the man in the surveillance photographs was at a barber shop at 2125 Ridge Avenue, Philadelphia, Pennsylvania. Detective Seifert went to the barber shop, recognized Martin as the man in the photographs, and arrested him.
A grand jury indicted Martin on two counts: (1) committing armed bank robbery on March 6, 1998; and (2) using and carrying a firearm during and in relation to an armed bank robbery. The main issue at trial was the identification of Martin as the bank-robber. United States v. Martin, No. 98-178, 2000 U.S. Dist. LEXIS 2054, at *2, 2000 WL 233217, at *1 (E.D. Pa. Feb. 25, 2000). On July 1, 1998, a jury convicted Martin on both counts, and his post-trial motions were denied. See Op., May 7, 2001 (paper no. 76). Martin, appealing timely, challenged, among other things, the prosecutor's opening and closing arguments as: (1) inappropriate vouching for the credibility of witness testimony; and (2) misrepresenting the testimony of Martin's expert witness. The Court of Appeals affirmed the conviction and sentence. United States v. Martin, 46 F. App'x 119, 122 (3d Cir. 2002) (unpublished).
Martin timely filed a motion under 28 U.S.C. § 2255 and raised claims of ineffective assistance of counsel. See Def. Mot., Apr. 23, 2004 (paper no. 92). Appointed counsel represented him at an evidentiary hearing, and the motion was denied. See Op., May 16, 2005 (paper no. 106). Martin appealed, and the Court of Appeals affirmed in all respects. United States v. Martin, 262 F. App'x 392, 401 (3d Cir. 2008) (unpublished).
On October 21, 2011, Martin filed a pro se Motion for New Trial (paper no. 118) under Federal Rule of Criminal Procedure 33. Martin argues: (1) the Assistant United States Attorney engaged in prosecutorial misconduct during closing argument when she mischaracterized the testimony of the defense expert witness; (2) the court erred when it failed to grant a jury request to see Martin smile;*fn1 and (3) the court erred in admitting "incredible" eyewitness testimony. Mot. New Trial at 1. The court liberally construes the Motion as grounded on newly discovered evidence. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) ("The handwritten pro se document is to be liberally construed"). In its Response (paper no. 119), the Government argues the Motion should be denied as: (1) untimely; (2) not based on newly discovered evidence; and (3) lacking in merit.
Under Federal Rule of Criminal Procedure 33, in the interest of justice the court may vacate any judgment and grant a new trial. The court granting a motion for new trial must be cautious. United States v. Fox, 402 F. App'x 741, 743 (3d Cir. 2010); see also 3 Charles A. Wright, et al., Federal Practice and Procedure § 581 (4th ed. 2012). Because the verdict against the defendant is presumed valid, the defendant bears a heavy burden to demonstrate a new trial ought to be granted. United States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006).
A motion for new trial grounded in newly discovered evidence must be filed within three years after the verdict or finding of guilt. Fed. R. Crim. P. 33(b)(1). If the motion is grounded on any other reason, it must be filed within seven days after the verdict or finding of guilt. Fed. R. Crim. P. 33(b)(2).*fn2
Martin was found guilty on July 1, 1998, and he filed this Motion on October 21, 2011 - 13 years later. Unless the court tolls the time period for filing ...