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US v. Berry, No. 08-35002

Robbery and Bombing Prosecution

In US v. Berry, No. 08-35002, a robbery and bombing prosecution, the court affirmed the denial of petitioner's habeas petition where 1) Jackson allowed a district court to treat a 28 U.S.C. section 2255 motion as a motion for a new trial under Rule 33; and 2) when the prisoner's section 2255 motion fell outside this time period, the district court could still treat it as a Rule 33 motion if the government waived any objection to Rule 33 timeliness.


As the court wrote:  "In 2007, almost ten years after he was convicted of two bank robberies, three bombings, and a number of related charges, Robert Berry filed a motion to vacate his conviction under 28 U.S.C. § 2255. Although purportedly brought under § 2255, Berry's motion largely sought the substantive relief of a motion for a new trial under Federal Rule of Criminal Procedure 33."

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