931 F. 2d 898 - United States v. Mosley

MEMORANDUM**

Raymond Edward Mosley, appearing pro se, appeals the district court's denial of his Fed.R.Crim.P. 33 motion for a new trial following his guilty plea to one count of possession with intent to distribute 24.1 grams of methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. app. II, Sec. 1202(a)(1). Mosley contends that the district court erred by denying his Rule 33 motion for a new trial because he discovered new evidence since his arrest. Mosley also raises several other issues for the first time on appeal. We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm.

"By its terms, Rule 33 applies only to cases in which a trial has occurred. When the defendant has pled guilty, as here, no trial has occurred and the Rule 33 remedy is unavailable." United States v. Collins, 898 F.2d 103, 103-04 (9th Cir.1989). Here, because Mosley pled guilty, he cannot attack his conviction by way of a Rule 33 motion and the district court properly dismissed the motion. See id.

Mosley also claims for the first time on appeal that (1) his plea was based on ineffective assistance of counsel, prosecutorial misconduct and "lulling" representations of the court, (2) he was denied his constitutional rights to a speedy trial and to a trial by jury, and (3) he was sentenced in violation of the constitution. Absent any "exceptional circumstances," this court will not consider issues raised for the first time on appeal. United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir.1990). We find no exceptional circumstances here.1

AFFIRMED.