The opinion of the court was delivered by: Pratter, J.
Following his conviction for various drug and firearm crimes and his unsuccessful appeal thereof, John Felder filed the instant Motion to Vacate, Set Aside, and Correct Sentence pursuant to 28 U.S.C. § 2255, primarily arguing that an FBI and Internal Affairs Division investigation into the conduct of the lead police investigator on his case proves that, as he has claimed all along, he is innocent of all of the crimes of which he has been convicted. Mr. Felder's habeas petition boils down to a claim that new evidence proves that he is actually innocent of the crimes for which he was convicted. Because a Federal Rule of Criminal Procedure 33 motion for a new trial, not a motion under § 2255, is the appropriate vehicle to present such a claim and because Mr. Felder failed to file such a motion within the three years allotted by the Rule, he is not entitled to relief, habeas or otherwise.
According to testimony at trial,*fn1 in the spring of 2005, the Philadelphia Police Department's investigation into illegal drug sales led them to Petitioner John Felder. More specifically, Officer Kenneth Oglesby, operating undercover, made several controlled purchases of marijuana and crack cocaine, first from co-defendant Gregory Long, and eventually also from Mr. Felder at his residence in Philadelphia. Officer Oglesby requested increasing amounts of crack cocaine, causing Mr. Felder to call on his supplier, co-defendant Theartis Haynes, to deliver additional drug quantities while Officer Oglesby waited to make his purchases. Officer Oglesby also purchased a .25 caliber pistol from Mr. Felder.
After a controlled purchase on June 10, 2005 at Mr. Felder's residence, officers followed supplier Mr. Haynes back to his residence and arrested him there. At the same time, they recovered $2,400 in pre-recorded buy money from Mr. Haynes. On the same day, officers arrested Mr. Felder and searched his residence. When they arrived, according to their testimony, he was seated on the bed in the second floor rear bedroom. In the same room, police recovered $1,100 in pre-recorded buy money, drug paraphernalia, cash, a kilogram of marijuana, 6.5 grams of heroin packaged for distribution, a loaded Glock, Model 17, nine millimeter semi-automatic pistol, and a loaded Colt, Model "Official Police," .38 caliber revolver. In other locations around the house, police recovered additional evidence, including six grams of cocaine base.
Based on this, Mr. Felder was charged with six counts of distribution of cocaine base and aiding and abetting (Counts 4, 6, 8, 9, 10, and 11); two counts of distribution of marijuana and aiding and abetting (Counts 5 and 7); one count of possession of cocaine base with intent to distribute (Count 12); one count of possession of marijuana with intent to distribute (Count 13); one count of possession of heroin with intent to distribute (Count 14); two counts of possession of a firearm in furtherance of a drug trafficking crime (Counts 17 and 18); and two counts of possession of a firearm by a convicted felon (Counts 19 and 20). Co-defendants Haynes and Long both pleaded guilty to multiple charges, while Mr. Felder proceeded to trial on January 29, 2008. Among those testifying at trial against Mr. Felder were Officer Oglesby; Officer Richard Cujdik, the Philadelphia Police Department's lead investigator on the case; and Messrs. Long and Haynes. Mr. Felder also testified at trial, claiming that he had long been addicted to drugs and would have used any drugs in the house if he had known they were there, Tr. 1/31/08 at 131-33; that Mr. Haynes was staying in the rear bedroom at the time of the search, id. at 128; and that the officers lied about finding him in that bedroom when they came to search his home, id. He also claimed that the firearms belonged to his uncle and had been locked in a safe in his mother's bedroom at the time of the search, id. at 128-29; that the cash, aside from the pre-recorded buy money, was money he received in a legal settlement, id. at 132-33; and that the officers lied about finding the guns and the cash in the rear bedroom, id. at 137-41.
At the conclusion of the trial on February 4, 2008, the jury found Mr.
Felder guilty of Counts 4 through 10, 12 through 14, 17, and 18. The
jury did not reach a unanimous verdict as to Counts 11, 19, and 20,
leading the Court to declare a mistrial as to those counts. The Court
granted the Government's motion to dismiss without prejudice Counts
11, 19, and 20, and dismissed Count 17 with prejudice.*fn2
On June 9, 2008, the Court sentenced Mr. Felder to a total
of 264 months in prison, eight years of supervised release, a $1,000
fine, and a special assessment of $1,100. Mr. Felder appealed his
conviction; and the Third Circuit Court of Appeals denied the appeal
on August 6, 2010. His judgment of conviction became final on December
8, 2010, when his time for seeking certiorari review by the United
States Supreme Court expired.
Months after Mr. Felder's trial, the Internal Affairs Division of the Philadelphia Police Department and the FBI began investigating allegations of misconduct by Officer Richard Cujdik in a September 2007 warrantless search of premises unrelated to Mr. Felder's case. In December 2008, at the beginning of the investigation, Officer Cujdik was transferred to a desk job. No charges have been filed against Officer Cujdik. From February through December 2009, the Philadelphia Daily News published a serious of articles entitled "Tainted Justice" detailing allegations of misconduct against several Philadelphia Police Department narcotics officers, including Officer Cujdik and his brother, Officer Jeffrey Cujdik. The articles included the information that Officer Richard Cujdik was under investigation and had been transferred to a desk job, as well as that he had not been charged with any wrongdoing.
A. Mr. Felder has not set forth a cognizable habeas claim
Despite Mr. Felder's attempts to cobble together a constitutional claim, he has not done so. At trial, Mr. Felder testified that Philadelphia police officers as well as his co-defendants lied, and a jury still found him guilty on several charges. The Third Circuit Court of Appeals upheld the verdict, finding the evidence against him sufficient. See Felder, 389 Fed. Appx. at 114-16. He now argues that new evidence of an investigation into the lead investigator on his case, Officer Richard Cujdik, proves that his conviction was based on false testimony.
At its core, Mr. Felder's argument appears not to rest on any particular constitutional violation, but on a claim of "actual innocence," bolstered by supposedly "newly discovered" evidence. Generally, however, although a claim of "actual innocence" can help a petitioner overcome the procedural default of a constitutional violation, "[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the course of the underlying state criminal proceedings." Herrera v. Collins, 506 U.S. 390, 400 (1993); see also Schlup v. Deno, 513 U.S. 298 (1995). Only by presenting new facts that "unquestionably" establish that a petitioner is innocent may a habeas petitioner succeed on an actual innocence claim without some other independent constitutional violation. See Schlup, 513 U.S. at 317.
Here, Mr. Felder has failed to present such evidence. Because he already presented evidence through his own testimony at trial that other witnesses were giving false testimony, the only new evidence arguably supporting his innocence now before the Court is evidence that one of the testifying officers has been investigated for possible wrongdoing in connection with a wholly unrelated case. Such evidence does not form the basis of a constitutional claim. See United States v. McArthur, 107 Fed. Appx. 275, 277 (3d Cir. 2004) (upholding district court's conversion of habeas petition to Rule 33 ...