Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-5-2004

USA v. McArthur
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2144




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                                                            NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEAL
                           FOR THE THIRD CIRCUIT


                                     No. 03-2144


                          UNITED STATES OF AMERICA,

                                          v.

                                LARRY MCARTHUR
                                 a/k/a Larry Williams

                                   Larry McArthur,

                                               Appellant


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         (D.C. Criminal No. 94-cr-00402-1)
                        District Judge: Hon. Norma L. Shapiro


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   May 27, 2004

BEFORE: RENDELL and COW EN, Circuit Judges and SCHW ARZER*, District Judge

                               (Filed : August 5, 2004)


                                      OPINION




*Honorable William W. Schwarzer, Senior United States District Judge for the Northern
District of California, sitting by designation.
COWEN, Circuit Judge

       Larry McArthur appeals an order of the District Court denying and dismissing his

pro se Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255. We

have jurisdiction under 28 U.S.C. § 1291, and will affirm.

       On January 19, 1995, a jury in the Eastern District of Pennsylvania convicted

McArthur of being a felon in possession of a firearm, in violation of 18 U.S.C. §

922(g)(1). The conviction was based primarily on the testimony of three Philadelphia

Housing Authority police officers who observed McArthur carrying a sawed-off shotgun

on the Philadelphia streets. McArthur appealed his conviction and sentence, which were

affirmed on December 15, 1995. Because he did not file a petition for certiorari to the

United States Supreme Court, his conviction became final on March 15, 1996.

       McArthur filed a § 2255 motion on August 3, 2001, raising claims of ineffective

assistance of counsel, “false reports and misleading facts,” perjured testimony, and newly

discovered evidence. First, he argued that his trial counsel was ineffective because

counsel coerced him into signing three stipulations which were read into evidence at trial.

Next, he alleged inconsistencies in the initial police reports made by the officers involved

and those officers’ testimony before the grand jury and at trial. Finally, he raised as

newly-discovered evidence a January 24, 2001 newspaper article reporting the perjury

conviction and sentence of one of the officers in an unrelated case.

       The District Court, finding that McArthur’s claim of newly-discovered evidence



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presented no constitutional issue, converted the bulk of the § 2255 motion into a Federal

Rule of Criminal Procedure 33 motion for a new trial and denied it as untimely. It then

determined that the remainder of the § 2255 motion was untimely under the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), and held that McArthur had not

alleged a sufficient basis for equitably tolling the limitations period. On appeal,

McArthur argues that the District Court erred in determining that the equitable tolling

doctrine was inapplicable to his motion. He also argues that the District Court erred in

rejecting his claim that the perjury conviction constituted “newly discovered evidence”

under 28 U.S.C. § 2255(a) that would bring the motion within the limitations period. We

exercise plenary review over the District Court’s legal conclusion. United States v.

Cepero, 

, 258 (3d Cir. 2000).

       The District Court correctly determined that the “newly discovered” evidence of a

witness’s subsequent perjury conviction in an unrelated case is not an independent ground

for relief in a § 2255 motion. See U.S. v. Garth, 

, 108 (3d Cir. 1999)

(“‘[F]ederal habeas courts sit to ensure that individuals are not imprisoned in violation of

the Constitution,’ and not to review questions of guilt or innocence.”) (citing Herrera v.

Collins, 

, 404 (1993)). Because the perjury conviction itself does not

support a claim of a constitutional violation that occurred at trial, McArthur cannot rely

on § 2255(4) to extend the limitations period on his otherwise untimely motion. Nor is

the doctrine of equitable tolling available to McArthur on this ground. Although the



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District Court acted within its discretion to consider the newly discovered evidence claim

as part of a Rule 33 motion for a new trial, it correctly recognized that the limitations

period on such a motion is jurisdictional, and therefore not subject to equitable tolling.

Shendock v. Director, Office of Workers’ Compensation, 

, 1466 (3d Cir.

1990) (“Equitable tolling . . . simply is not available when there are jurisdictional

limitations.”); United States v. Coleman, 

, 807 (3d Cir. 1987) (“The time

limit for filing motions under Rule 33 is jurisdictional.”). Finally, we find no merit to

McArthur’s argument that the AEDPA limitations period should be tolled with regard to

the constitutional claims in his § 2255 motion because he was never advised of his right

to file a habeas petition. See Pennyslvania v. Finley, 

, 555 (1987) (no right

to counsel on collateral attacks to a conviction).

       For the foregoing reasons, we conclude that the District Court did not err in

determining that McArthur’s motion was time-barred. The judgment of the District Court

entered on March 20, 2003 will be affirmed.




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