US v. Harrington
No. 03-30413 (6-6-05). A petitioner, pro se, files a motion for new trial base don newly discovered evidence years after he had a direct appeal and a habeas petition. He argued, cleverly, that a motion for new trial, because it related back to trial, required appointment of counsel. The 9th paused, but said "no." A motion for new trial is a critical stage, and a pro se that wants counsel then, gets one. But, that request is usually before sentencing, or before appeal. Here, once an appeal is taken, there is no right for counsel. The defendant is out of luck, or at least out of CJA. The 9th has no trouble looking at the merits and finding them wanting. The motion for newly discovered evidence was not new, and didn't prove innocence of the LSD drug deal.