Unpublished Disposition, 889 F.2d 1097 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 889 F.2d 1097 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Ida Patrice ROBINSON, Defendant-Appellant.

No. 87-5236.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 31, 1989.* Decided Nov. 20, 1989.

Before TANG, NELSON and REINHARDT, Circuit Judges.


MEMORANDUM** 

Following a bench trial, Ida Patrice Robinson was convicted of air piracy in violation of 49 U.S.C. § 1472(i) (1) and sentenced to twenty years in prison. More than seven days after Robinson had been found guilty, she moved for a new trial under Fed. R. Crim. P. 33. The district court denied Robinson's motion for a new trial, and Robinson timely appeals. We affirm.

On appeal, Robinson contends that she received ineffective assistance of counsel because her attorney failed to raise the defense of necessity. Robinson does not claim that evidence supporting her claim of ineffective assistance of counsel constitutes newly discovered evidence under Rule 33.

A motion for a new trial on any ground other than the discovery of new evidence must be made within seven days of the finding of guilt. Fed. R. Crim. P. 33. United States v. Lara-Hernandez, 588 F.2d 272, 275 (9th Cir. 1978). If a claim of ineffective assistance of counsel is raised on direct appeal and is not based on newly discovered evidence, failure to comply with the seven day requirement under Rule 33 creates a jurisdictional bar to the motion. United States v. Hazeem, 679 F.2d 770, 774 (9th Cir. 1982); Lara-Hernandez, 588 F.2d at 275.

Here, because Robinson's motion for a new trial on the ground that she received ineffective assistance of counsel is not based on newly discovered evidence, this court lacks jurisdiction because Robinson failed to file her motion for a new trial within seven days of her finding of guilty. See Hazeem, 679 F.2d at 774; Lara-Hernandez, 588 F.2d at 275.

Robinson's ineffective assistance of counsel claim may be raised under 28 U.S.C. § 2255.

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, Robinson's request for oral argument is denied

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3