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U.S. v. Berry, No. 08-35002 (10-22-10) (Tashima with Kleinfeld and Tallman). The 9th takes this opinion to clarify that a district court may treat a 2255 motion as a Rule 33 motion for new trial. However, the 2255 must be timely; that is, with newly discovered evidence, within three years of the conviction. Rule 33 though is not jurisdictional, and can be waived, if the government does not object in a timely manner. The petitioner here was convicted of bank robberies and pipe bomb explosions back in 1997. The government in its prosecution used an "expert" on bullets and on "compositional analysis of bullet lead" (CABL) that connected the petitioner to weapons used in the robberies. Subsequently, the expert plead guilty to a false statement in connection in a Daubert hearing and the FBI stopped using CABL evidence because of doubts on its reliability. So, does petitioner get a new trial? No. The 9th concludes that while CABL evidence is suspect, and unreliable, and flawed, cross examination should have exposed it in 1997, or petitioner should have showed why he could not have exposed it then; and the evidence it is not so flawed, unreliable, and suspect to violate due process. Moreover, in this case, the expert hedged her testimony a little, and her investigation seemed to be specific to the facts on hand in this case: the buckshot used being compared to the composition of an exact manufacturer with a unique mixture of 3 percent antimony used in its manufacturing process and that percent was found in the ammunition used. Finally, the 9th, under the new trial analysis, concluded that the new evidence was really only impeachment (!) as was the expert's conviction, and the NRC report. There was also other circumstantial evidence.

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