Unpublished Disposition, 886 F.2d 1320 (9th Cir. 1989)

MEMORANDUM^** 

Nga Tuyet Nguyen was convicted, following a jury trial, for arson, mail fraud, and conspiracy to commit arson and mail fraud. More than seven days after her conviction but before she was sentenced, Nguyen filed a motion for a new trial based on "newly discovered evidence" that her attorney was incompetent because she failed to raise an alibi defense. Because no new evidence was discovered on this basis, Nguyen filed a supplemental motion for a new trial in which she claimed that her attorney failed to raise an insanity defense or, in the alternative, a defense of diminished capacity. The district court denied the motion because evidence of Nguyen's insanity had previously been introduced at trial, and was therefore not newly discovered evidence under Fed. R. Crim. P. 33. Nguyen appeals the district court's denial of her motion for a new trial. We affirm in part and vacate in part.

Nguyen's claim, which the district court properly treated as a motion for a new trial under Rule 33, was based on facts known to her at the time of trial, and her failure to comply with the seven day time limit created a jurisdictional bar to the motion. See United States v. Hazeem, 679 F.2d 770, 774 (9th Cir. 1982); United States v. Lara-Hernandez, 588 F.2d 272, 275 (9th Cir. 1978). Therefore, the district court did not err because it had no jurisdiction to consider Nguyen's motion. See Hazeem, 679 F.2d at 774; Lara-Hernandez, 588 F.2d at 275.

Nguyen does not claim here that evidence of her insanity constitutes new evidence. Rather, Nguyen contends that her counsel rendered ineffective assistance by failing to research and raise the insanity defense. She argues that this claim, although brought as a motion for a new trial, was properly before the district court either as a petition for a writ of error coram nobis or as a motion for relief under 28 U.S.C. § 2255.

Coram nobis is an extraordinary writ which will not lie unless a petitioner demonstrates that no other relief is available. Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987). Relief under Section 2255 is available only to a prisoner to attack a sentence under which he is in custody. Migdol v. United States, 298 F.2d 513, 514 (9th Cir. 1961). A motion for a new trial on any ground other than the discovery of new evidence must be made within seven days of the verdict. Fed. R. Crim. P. 33. Lara-Hernandez, 588 F.2d at 275. Failure to timely comply with the Rule 33 time limits is a jurisdictional bar to the motion. Hazeem, 679 F.2d at 774.

Here, Nguyen was not entitled to a writ of error coram nobis because relief was available to her under Section 2255. See Hirabayshi, 828 F.2d at 604. Nguyen could have brought a petition for relief under Section 2255 after the start of her sentence. See Migdol, 298 F.2d at 514. However, because Nguyen brought the motion before the start of her sentence, relief was precluded under Section 2255 because the district court lacked jurisdiction. See id. (district court lacked jurisdiction where prisoner, incarcerated for earlier offense, attacked subsequent sentence for new offense before start of new sentence). Section 2255 motions, based on ineffective assistance of counsel, are usually brought after the petitioner has been unsuccessful on direct appeal. Thus, Nguyen is not barred by her prior filings, or our decision, from now pursuing a section 2255 claim.

Although Nguyen did not raise the issue in her appeal, this court recently held that 18 U.S.C. § 3013, the statute providing for Nguyen's special assessment, $50, violated the origination clause of the Constitution, art. I, Sec. 7. United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir. 1988). Accordingly, this court reverses the special assessment part of Nguyen's sentence and remands for the district court to vacate it. See Shah v. United States, 878 F.2d 1156, 1163 (9th Cir. 1989) (issue raised sua sponte on appeal).

Affirmed in part and vacated in part.