Diamen v. United States

725 A.2d 501, 1999 D.C. App. LEXIS 44, 1999 WL 92406

• Court: District of Columbia Court of Appeals
• Decided: February 25, 1999
• Docket: 96-CO-295, 96-CO-299, 96-CO-301
• Status: Published

Opinions

SCHWELB, Associate Judge:

On January 6, 1975, following a five-week trial, appellants Michael A. Diamen, Joseph Nick Sousa, and Joseph Wayne Eastridge were convicted by a jury of first-degree murder while armed, D.C.Code §§ 22-2401, - 3202 (1996), in connection with the stabbing death of Johnnie Battle. On March 16, 1979, appellants’ convictions were affirmed by this court. Sousa v. United States, 400 A.2d 1036 (D.C.), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 485, 62 L.Ed.2d 408 (1979).

In April 1995, following earlier unsuccessful attempts by Eastridge¹ and Diamen ² to have their convictions set aside, the three appellants filed a joint motion to vacate their convictions pursuant to D.C.Code § 23-110 (1996). The motion was based on newly discovered evidence, and the appellants also claimed that the trial judge had committed constitutional error at their trial by precluding each defendant from eliciting from any witness or codefendant any evidence that would tend to inculpate any codefendant. •

The motions judge denied the motion without a hearing. The judge held that the newly discovered evidence had not been presented within two years of final judgment, as required by Super. Ct.Crim. R. 33, and that the affidavits filed in support of the motion were insufficient in any event to require the court to hold a hearing. The judge did not address the appellants’ claim that constitutional error was committed at their trial, perhaps because the appellants’ convictions had been affirmed on direct appeal, and because the judge may have believed that, as a judge of the Superior Court, he lacked the authority to second-guess a ruling by this court.

On appeal from the denial of their motion, the appellants reiterate the claims made in the trial court, and they contend that the motions judge erred in denying the appellants an evidentiary hearing. We affirm.

I.

PROCEDURAL BACKGROUND

The evidence adduced at the appellants’ trial is set forth in detail in this court’s opinion in Sousa, and we confine ourselves to a brief summary. The appellants, all three of whom are white, were members of a motor cycle club called the “Pagans.” On November 1, 1974, several Pagans, including the appellants, went to the Godfather Restaurant on Wisconsin Avenue to continue a celebration of the birthday of one of the members of the group, a Pagan named Richard C. Richter.³ The proprietor of the restaurant, who was familiar with Richter and his group, directed an employee to deny them service. As the Pagans left the restaurant, they encountered a group of young black men, including the decedent, Johnnie Battle. Insults and hostile words were exchanged, and a Pagan threw popcorn at one of the black men. The unpleasantness escalated into threats of violence, and Battle went to his car to arm himself with a handgun. As he was walking back towards the restaurant, Battle was confronted by several Pagans who were carrying knives. In an apparent attempt to take preemptive action, Battle shot and wounded one of the Pagans, Bruce Hunter. Battle continued to fire, but his pistol jammed, and he began to run. Several of the Pagans then pursued Battle, caught him, and stabbed him to death.

A short time after the murder, the three appellants and their codefendant, Steven Jones, were apprehended by the police when Eastridge’s car, which Sousa was driving, went through a red light. Jones had severe cuts on his hand, and blood was found on his clothing and on a newspaper in the vehicle. Small amounts of blood were found on the inside of Diamen’s pants and on Sousa’s shirt.⁴ Several knives were recovered from the automobile and its occupants, and there was testimony, vigorously denied by Diamen, that Diamen had discarded another knife while the vehicle was being searched. According to the testimony of Dorothy Willetts, an associate of several of the Pagans, appellants Sousa and Eastridge, who had been released on bond, admitted to Ms. Willetts that they had participated in the killing of the decedent.

Testifying in their own defense, all three appellants denied any complicity in the pursuit of the decedent or in his murder. Jones also took the stand. Jones admitted that he chased Battle after Battle had shot Hunter. Jones claimed, however, that Battle had eluded him, and that he (Jones) did not participate in the killing and had no knowledge of it. All four defendants were convicted of first-degree murder while armed. The three appellants were sentenced to prison terms of twenty years to life, and each filed a timely notice of appeal.

On direct appeal, the convictions of Dia-men, Sousa, and Eastridge were affirmed.⁵ The court held that the trial judge did not abuse his discretion by denying the appellants’ motions for severance based, inter alias on antagonistic defenses. Sousa, supra, 400 A.2d at 1042-43.⁶ The court also “examined the multitude of other contentions made by appellants and [found] them to be without merit.” Id. at 1038 n. 1.

More than sixteen years after this court's affirmance of them convictions, the appellants jointly filed the § 23-110 motion which is the subject of the present appeals. They claimed that a six-year investigation conducted on their behalf by Centurion Ministries⁷ has produced evidence exonerating the three appellants and identifying the “real” murderers. The new evidence adduced by the appellants consisted primarily of the following:

1. an affidavit executed in December 1993 by the appellants’ former codefendant, Steven Jones, in which Jones admitted his own participation in the stabbing of Battle,⁸ claimed that the three appellants were innocent, and asserted that his confederates in the killing were former Pagans Charles Jennings, John Woods, and a third man whom Jones declined to identify; it is undisputed, however, that Jennings and Woods are now deceased;

2. affidavits by three former Pagans who asserted, in 1993 and 1995 respectively, that Woods and Jennings, the two deceased men implicated by Jones, had both admitted their roles in the murder and had stated that the appellants were not involved; ⁹ these admissions by Woods and Jennings were allegedly made in the late 1970s;

3. an affidavit dated April 6, 1995, by John Gianaris, whom the appellants presented as a previously undiscovered eyewitness to the stabbing, and who stated, more than twenty years after the fact, that he saw “no more than four” men attacking Battle and that no car passed by the area at the relevant time; and

4. several affidavits expanding upon doubts cast at trial on the credibility of Ms. Willetts.

The appellants also claimed in their motion that the trial judge had committed constitutional error as described above. The motions judge, as we have noted, denied the appellants’ § 23-110 motion without a hearing. This appeal followed.

II.

NEWLY DISCOVERED EVIDENCE AND THE CLAIM OF ACTUAL INNOCENCE

The appellants contend that Centurion Ministries’ lengthy investigation has resulted in the discovery of new evidence demonstrating their innocence. They assert that this showing of innocence entitles them to relief pursuant to D.C.Code § 23-110. We conclude, however, that in light of the provisions of Rule 33 of the Superior Court’s Rules of Criminal Procedure and the applicable case law, the appellants’ reliance on newly discovered evidence comes many years too late.

Rule 33 provides in pertinent part:

The Court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice .... A motion for a new trial based on the ground of newly discovered evidence may be made only before or within 2 years after final judgment, but if an appeal is pending, only on remand of the case may the Court grant the motion.

Super. Ct.Crim. R. 33. The appellants’ motion was filed twenty years after they were convicted and sixteen years after the affir-mance of their convictions.

Our local Rule 33 “is identical to the corresponding Federal Rule of Criminal Procedure.” Williams v. United States, 374 A.2d 885, 889 n. 6 (D.C.1977). It is therefore to be construed consistently with the federal rule and, in the absence of applicable local precedent,¹⁰ we look to the ease law construing Fed. R. Crim. P. 33. See Waldron v. United States, 370 A.2d 1372, 1373 (D.C.1977).

“The time limitations of Rule 33 are jurisdictional. The court is without power to consider an untimely motion for a new trial.” 3 Chakles Alan Weight, Federal Practice & Procedure § 558, at 360 (2d ed. 1982 & Supp.1998) (footnotes omitted); see also United States v. Smith, 62 F.3d 641, 648 (4th Cir.1995) (citing Wright). Because Rule 33 requires that a motion based on newly discovered evidence be made within two years after final judgment, the court is without power to grant a motion filed after the expiration of that period. See, e.g., Guinan v. United States, 6 F.3d 468, 470-71 (7th Cir.1993); Jacobanis v. United States, 256 F.2d 485, 486 (1st Cir.1958). The two-year limit is strictly enforced. Herrera v. Collins, 506 U.S. 390, 409, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); United States v. Kaplan, 101 F.Supp. 7, 13 (S.D.N.Y.1951) (Weinfeld, J.). A court is precluded from considering newly discovered evidence presented after the expiration of two years even where the court is convinced that “a grave miscarriage of justice has taken place,” Kaplan, supra, 101 F.Supp. at 11, and where “it is difficult to see how some of the vital evidence now presented could have been available to the defendant during the two-year period.” Id. at 13.

Although this result may appear harsh,¹¹ see also Part IV, infra, there can be no doubt that it was intended by those who promulgated Fed. R. Crim. P. 33. Prior to 1944, defendants in federal prosecutions “enjoyed sixty days from judgment to move for a new trial on the basis of newly discovered evidence and only three days otherwise.” Smith, supra, 62 F.3d at 649 (citation omitted). Thereafter,

[wjhen Rule 33 was adopted in 1944, the Advisory Committee recommended that time limits upon new trial motions based on newly discovered evidence be eliminated. The Committee and its supporters reasoned that a new trial should always be available when a criminal defendant can introduce new evidence tending to demonstrate his actual innocence. See 3 Wright, Federal PRactice and Procedure § 558, at 362-63 & nn. 7-8. Although the Supreme Court rejected the Advisory Committee’s proposal, and instead imposed a two-year limit on motions based on newly discovered evidence, the basic rationale for extending greater latitude to motions based on newly discovered evidence remains the same: to enable the district court to afford relief when new information bolsters a claim of actual innocence.

Id. (emphasis added); see also Herrera, supra, 506 U.S. at 409, 113 S.Ct. 853; Kaplan, supra, 101 F.Supp. at 13-14. This history demonstrates beyond peradventure the Supreme Court’s determination that a new trial may not be granted on the basis of newly discovered evidence after two years have elapsed, regardless of any showing of actual innocence.¹² Indeed, it was for cases involving claims of actual innocence that Rule 33’s two-year limitations period was purposely designed.¹³

In the present case, the appellants predicated their motion on D.C.Code § 23-110, a provision which permits a defendant to file his motion “at any time,” and not on Rule 33. They contend that the limitations of Rule 33 are not applicable, and that “the court below erred in concluding that appellants’ failure to timely file a motion for a new trial under Rule 33 precluded it from entertaining a motion for a new trial based on newly discovered evidence.” But “[t]he nature of a motion is determined by the relief sought, not by its label or caption.” Frain v. District of Columbia, 572 A.2d 447, 450 (D.C.1990) (citation omitted). Insofar as the presentation of newly discovered evidence is concerned, the purpose of the appellants’ motion is identical to that served by Rule 33. “By merely designating this a § 2255 motion,¹⁴ the time constraints applicable to a motion based on newly discovered evidence cannot be so readily circumvented.” United States v. Madonna, 556 F.Supp. 260, 266 (S.D.N.Y.) (citation omitted), aff'd, 697 F.2d 293 (2d Cir. 1982), cert. denied, 459 U.S. 1108, 103 S.Ct. 734, 74 L.Ed.2d 957 (1983); Guinan, supra, 6 F.3d at 470-71; United States v. DeCarlo, 848 F.Supp. 354, 355-58 (E.D.N.Y.1994) (Rule 33’s time limits may not be avoided by styling motion as one for a writ of error coram nobis).

Moreover, the Supreme Court made it clear in Herrera that, even in capital cases, time limitations on motions for a new trial based on newly discovered evidence do not present a constitutional issue cognizable in habeas corpus. The Court pointed out that at common law, a new trial could be granted only during the term of court in which the final judgment was entered. 506 U.S. at 408, 113 S.Ct. 853. The Court also noted that a substantial majority of the states placed time limits on the filing of new trial motions based on newly discovered evidence; indeed, many of those limitations are substantially shorter than the District’s two-year period. Id. at 410-11, 113 S.Ct. 853.¹⁵ The Court was prepared to assume, for the sake of argument, that “in a capital case¹⁶ a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.” Id. at 417, 113 S.Ct. 853 (emphasis added). The Court found it unnecessary to decide whether the lack of such a state remedy would be fatal, however, because Texas, like most jurisdictions, permitted the defendant to seek a pardon from the Governor, id. at 411, 113 S.Ct. 853, and because, according to the Court, “[hjistory shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency.” Id. at 417, 113 S.Ct. 853.¹⁷ Herrera thus holds that if the time for requesting a new trial has elapsed, the availability of discretionary authority in the Executive Branch to consider the defendant’s newly discovered evidence and to grant him clemency¹⁸ makes it constitutionally permissible to deny the defendant a further judicial forum without considering the merits of his claim of actual innocence.¹⁹

III.

THE ALLEGED CONSTITUTIONAL VIOLATION

The five defendants who were indicted as a result of the events of November 1, 1974 — Diamen, Sousa, Eastridge, Jones, and Richter — were tried together. In an apparent attempt to avoid a perceived or actual need for severance and multiple trials,²⁰ the judge ruled, as we have noted, that no defendant would be permitted to elicit from any witness information which would tend to incriminate any other defendant.²¹ The judge also restricted arguments of counsel accordingly. The appellants contend that this ruling unconstitutionally impaired their right, protected by the Fifth Amendment, to present a defense.²²

The appellants acknowledge that the constitutional claim that they now seek to raise was presented to and rejected by this court on direct appeal. See Sousa, supra, 400 A.2d at 1038 n. 1. The appellants sought rehearing by the division or, in the alternative, by the full court, but their petition was denied. The Supreme Court subsequently declined to review the case. 444 U.S. 981, 100 S.Ct. 484, 485, 62 L.Ed.2d 408. The appellants nevertheless assert that, in light of the newly discovered evidence, this court is free to reconsider them claim of constitutional error. The appellants also fault the motions judge for failing to address that claim in his written order denying their § 23-110 motion. They assert, in effect, that the motions judge erred by declining to overrule this court’s holding in Sousa that there was no violation at the trial of the appellants’ constitutional rights.

A. The binding authority of the Sousa decision.

“It is well-settled that where an appellate court has disposed of an issue on appeal, [that issue] will not be considered afresh on collateral attack in a trial court of the same judicial system, absent special circumstances.” Doepel v. United States, 510 A.2d 1044, 1045-46 (D.C.1986) (footnote and citations omitted); see also Minick v. United States, 506 A.2d 1115, 1116-17 (D.C.) (per curiam), cert. denied, 479 U.S. 836, 107 S.Ct. 133, 93 L.Ed.2d 76 (1986). We are also bound by the related rule that one division of the court cannot overrule the decision of a prior division. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971); Minick, supra, 506 A.2d at 1116-17.

This court has not definitively construed the term “special circumstances” as used in Doepel. In Peoples v. Roach, 669 A.2d 700, 702 n. 5 (D.C.1995), we suggested that “[s]uch special circumstances might consist of an intervening change in the relevant law.”²³ In United States v. Palumbo, 608 F.2d 529 (3d Cir.1979), the court held that

in the absence of [1] newly discovered evidence that could not reasonably have been presented at the original trial, [2] a change in applicable law, [3] incompetent prior representation by counsel, or [4] other circumstances indicating that an accused did not receive full and fair consideration of his federal constitutional and statutory claims, a § 2255 petitioner may not reliti-gate issues that were adjudicated at his original trial and on direct appeal.

Id. at 533 (footnotes omitted; bracketed numerals added).

An examination of the four “special circumstances” or “exceptions” identified in Palumbo reveals that none of them permits a trial judge to disregard a ruling of the appellate court, or a successor division to second-guess a predecessor division’s decision, simply because the trial judge or the successor division disagrees with the earlier division’s legal analysis and perceives a constitutional violation where the earlier division found none.²⁴ On the contrary, each Palumbo exception involves a circumstance which prevented the earlier division, through no legal error of its own, from correctly deciding the constitutional issue. In other words, the “special circumstances” must be such that, if the original panel had been apprised of them, its decision would have been different. See Minick, supra, 506 A.2d at 1117 (on collateral attack, the defendant must show that the initial ruling “is clearly erroneous in light of newly presented facts or a change in substantive law”). Any other reading of the phrase “special circumstances” would undermine the rule of M.A.P. v. Ryan, the doctrine of the law of the case, and the need for consistency which these rules represent. Indeed, if we were to adopt the appellants’ argument, then a judge of the Superior Court would be free to rule in 1996 that the Court of Appeals erred in 1979 when the appellate court decided, on the same record, the very question which is now before the Superior Court judge. We know of no authority for such a startling proposition.²⁵

Of the four Palumbo exceptions, only the first — newly discovered evidence— has any possible application here. The appellants make no claim of a change in applicable law.²⁶ There is no allegation that their trial counsel were incompetent.²⁷ Finally, the appellants received a full and fair hearing on their constitutional claim, and they have made no persuasive showing to the contrary.²⁸

B. Newly discovered evidence and the constitutional issue.

We also conclude that the appellants’ newly discovered evidence does not provide any previously unavailable support for their contention that the judge committed constitutional error at their trial. Although the appellants have presented new evidence relevant to their claim of actual innocence, that evidence has no logical or legal bearing on the constitutional issue that they now seek to relitigate.

Under the standard articulated in Palumbo, a division of this court could properly reconsider the decision in Sousa if the appellants produced newly discovered evidence “that could not reasonably have been presented at the original trial ....” 608 F.2d at 533. The affidavits secured by the appellants, if true, establish that the exculpatory evidence that they now present was not available in 1975, and that at that time, the appellants had no reasonable opportunity to obtain it.²⁹ We will also assume, for purposes of this appeal, that at least where newly discovered evidence of actual innocence is relevant to a defendant’s claim that his constitutional rights have been violated, that evidence may be presented and considered more than two years after final judgment.

But if the court is to reconsider a previously rejected constitutional claim on the basis of newly discovered evidence, then elementary logic surely requires, and Palumbo implicitly contemplates, that the evidence must be relevant to the constitutional issue sought to be relitigated, and not just to the question of guilt or innocence. It is useful, in this connection, to compare the appellants’ claim here with that of the defendant in a hypothetical case that we consider paradigmatic.

Suppose that a defendant is convicted of murder after the trial judge admits the defendant’s confession into evidence, rejecting the defendant’s claim that the confession was coerced. The appellate court sustains the finding of no coercion and affirms the defendant’s conviction. Ten years later, a conscience-stricken police officer provides the defense attorney with a videotape of the defendant’s interrogation. The tape clearly shows the officer’s colleagues beating the confession out of the defendant. Armed with his new evidence, the defendant now mounts a collateral attack on his conviction. He contends that his confession was unconstitutionally obtained and that it should have been excluded from evidence. The motions judge denies relief, deferring to the appellate court’s earlier ruling that the confession was properly admitted. The defendant appeals again. Under the Palumbo standard, the appellate court is now free to revisit the decision issued on the defendant’s direct appeal. This is so because the newly discovered evidence reveals that, contrary to the appellate court’s belief at the time of the first appeal, the defendant’s constitutional rights have been violated. In our hypothetical, the newly discovered evidence demonstrates that the confession was erroneously admitted and that the defendant was convicted of murder on the basis of evidence that was secured by unconstitutional means.

In the present ease, on the other hand, the newly discovered evidence provides no previously unavailable information regarding the question whether the trial judge’s ruling impaired the appellants’ rights under the Fifth and Sixth Amendments. At the trial, the judge precluded the appellants from presenting certain evidence that they sought to elicit from various witnesses. That restriction was either constitutional, as this court held in Sousa, or it was not. The new affidavits by Jones and others which form the basis for the appellants’ § 23-110 motion do not illuminate the question whether the judge’s restrictions were constitutionally permissible. At most, these affidavits tend to show that, if there was a constitutional violation, then the consequences of that violation would have been even more severe if the appellants had possessed and attempted to adduce the newly discovered evidence, and if the judge had prevented them from doing so.³⁰ The new information, however, is of no help to appellants in their attempt to establish that the judge’s rule was unconstitutional and that significant exculpatory evidence was excluded from the trial.

We do not believe that the Supreme Court’s decision in Schlup, supra note 23, is contrary to our analysis.³¹ In Schlup, the Court held that in “an extraordinary ease” presenting a “fundamental miscarriage of justice,” 513 U.S. at 321, 115 S.Ct. 851, a defendant who had been sentenced to death was entitled to have a successive (and, in the ordinary case, procedurally barred) federal habeas corpus petition heard on the merits, and could assert grounds previously rejected by the state and federal courts, if he was able to demonstrate, on the basis of newly discovered evidence not previously available to him, that no impartial jury could find him guilty beyond a reasonable doubt. Id. at 321-32, 115 S.Ct. 851. Schlup is thus basically about federalism, and its gist is that a capital defendant ³² who presents newly discovered and compelling evidence of actual innocence may obtain federal habeas review of an otherwise defaulted constitutional claim. There is nothing in Schlup to suggest that, on remand, the United States District Judge could simply rule, without new evidence relevant to the constitutional issues, that the prior decisions of the United States Court of Appeals were erroneous and that he was not obliged to follow them. In any event, we conclude that the newly discovered evidence with which the appellants in this case seek to shift blame to two now-deceased Pagans (largely on the basis of an affidavit by a confessed murderer who now admits that he committed perjury at his trial and hearsay statements of uncertain admissibility implicating Jennings and Woods, see Williamson v. United States, 512 U.S. 594, 598-602, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994)) does not meet the substantive standard articulated in Schlup and in the authorities on which Schlup relies.

We therefore conclude that, as a division, we are bound by the disposition in Sousa of the appellants’ constitutional contentions. We have no occasion to decide what, if any, action the full court could or should take with respect to these contentions in the event of a petition for rehearing en banc.

IV.

CONCLUSION

Although a defendant is presumptively entitled to a hearing on a motion brought pursuant to D.C.Code § 23-110, no hearing is required where his allegations would merit no relief even if trae. See, e.g., Pettaway v. United States, 390 A.2d 981, 984 (D.C.1978).³³ Having determined that the appellants’ newly discovered evidence has been presented too late, and that the appellants’ previously rejected constitutional claim is not now viable, we conclude that their § 23-110 motion was properly denied without a hearing.³⁴

The foregoing would ordinarily end this opinion. But because the appellants have presented a non-frivolous claim that they have spent many years behind bars for a crime that they did not commit, and because we are constrained to affirm the denial without a hearing of a motion in which they vigorously assert their innocence, we think that a few additional paragraphs are in order. “In the unusual circumstances of this case, the [e]ourt feels that it would be shirking its responsibility if the denial of the motion were made without further comment.” Kaplan, supra, 101 F.Supp. at 14.³⁵

“[F]ew would argue that a criminal defendant who has been convicted of rape or murder must go to the electric chair or stay in prison even if DNA evidence shows that he did not commit the crime.” Merrell Dow Pharm. Inc. v. Oxendine, 649 A.2d 825, 834 (D.C.1994) (concurring opinion). One who reads Super. Ct.Crim. R. 33 in conjunction with the Supreme Court’s decision in Herrera is led to the uncomfortable sense that an innocent defendant may be executed or left to rot in jail because conclusive exculpatory evidence, through no fault of his own, came to his attention too late. Such a defendant is, of course, free to apply for executive clemency, but pardons are discretionary, and often politically unpopular as well. Moreover, a defendant cannot fairly be blamed if he regards executive clemency as an insufficient remedy when he did not in fact commit the crime for which he is being pardoned. An innocent man asks for justice, not for mercy. In a powerful dissenting opinion in Tippitt v. Wood, 78 U.S.App. D.C. 332, 140 F.2d 689 (1944), Justice Arnold expressed his firm belief that “the courts rather than the executive are the guardians of liberty against arbitrary judicial action.” 78 U.S.App. D.C. at 339, 140 F.2d at 696; see also the Appendix, infra.

It is, and should be, difficult for a criminal defendant to secure a new trial several decades after the fact. See, e.g., Dobson v. United States, 711 A.2d 78, 84 (D.C.1998) (“lapse of time affects the quantum of required proof, as well as the good faith and credibility of the moving party”) (citation and internal quotation marks omitted). Putting the blame on people who are dead and who can no longer defend themselves is particularly suspect. See Herrera, supra, 506 U.S. at 417, 113 S.Ct. 853.³⁶ Under Rule 33 as written, however, passage of a relatively short time — two years — -acts as an absolute bar, no matter how compelling the showing of innocence may be.

As Professor Wright has written, “[this] can lead to very unattractive results.” S WRIGHT, supra, § 558, at 363. These results can be avoided. More than half a century ago, the version of Rule 33 proposed by the federal Advisory Committee on Criminal Rules would have permitted motions based on newly discovered evidence to be filed “ ‘at any time before or after final judgment.’” Id. at 362. “This proposal was eloquently supported by former Attorney General Homer Cummings, [the nation’s chief prosecutor,] who could see ‘no reason, in logic, in justice, or in expediency’ why there should be any time limit on motions of this kind.”³⁷ Id.

But for the time limitation contained in Rule 33, a hearing on the appellants’ § 23-110 motion might well be appropriate in this case.³⁸ In any event, the Superior Court’s Board of Judges might wish to consider whether an amendment of Rule 33 in conformity with the former Attorney General’s views would be in the interest of justice.

The decision of the motions judge is

Affirmed.

Appendix

Newly Discovered Evidence

The Committee has proposed the abolition of time limitations on motions for a new trial on the ground of newly discovered evidence. This is a courageous and commendable step. The conviction of an innocent person in a federal court is a rarity. Yet, as all human institutions are fallible, such miscarriages of justice have occurred. During my term of office as Attorney General I have known of it in a few instances and was obliged to take steps to retrieve the wrong either by confessing error, if it was not too late to do so, or by securing a pardon. Executive clemency in such an instance is, however, inadequate and unsatisfactory. A judicial remedy should always be available. Such a remedy, in fact, is now open if the newly discovered evidence exculpating the defendant becomes available within a certain time limit. Unfortunately, such evidence is apt to come to light at a later date. There is no reason, in logic, in justice, or in expediency, for limiting the time during which a court may grant a new trial in such cases. I, for one, am not afraid that the courts will be inundated by a flood of frivolous motions of this kind. We may well rely on the good sense of federal judges not to grant such motions except upon sufficient cause.

Homer Cummings, The Third Great Adventure, 3 P.R.D. 283, 287 (1943).

1 . Eastridge v. United States, No. 82-387 (D.C. June 16, 1983) (Memorandum Opinion and Judgment).

2 . Diamen v. United States, No. 84-1358 (D.C. July 31, 1985) (Memorandum Opinion and Judgment).

3 . Richter later became one of the appellant's codefendants at trial.

4 . The blood found on Sousa and Diamen was not identified as Battle’s.

5 . Jones, who was considerably younger than the other defendants, received a much shorter sentence, and he did not appeal. The fifth defendant, Richter, was convicted of assaulting one of Battle’s companions. Richter’s convictions were reversed on grounds unrelated to the present appeals. See Sousa, supra, 400 A.2d at 1041-42.

6 . The court also rejected Diamen’s claim that he was unduly prejudiced by the admission at the appellants’ joint trial of alleged confessions of his codefendants, Sousa and Eastridge, to Ms. Wil-letts.

7 . Centurion Ministries is a non-profit advocacy group whose mission, according to its founder and president, is "to free from prison and vindicate those who are completely innocent of the crimes for which they have been wrongfully convicted and sentenced to life or death.”

8 . At trial, as we have noted, Jones denied his own involvement.

9 . Two affiants asserted that Woods explicitly admitted his guilt. A third affiant averred that Jennings implicitly did so.

10 . Neither Head v. United States, 489 A.2d 450-51 & n. 1 (D.C.1985) nor Johnson v. United States, 385 A.2d 742, 743 (D.C.1978) decides the issue here presented. See, e.g., District of Columbia v. Sierra Club, 670 A.2d 354, 360 (D.C.1996) ("the rule of stare decisis is never properly invoked unless in the decision put forward as precedent the judicial mind has been applied to and passed upon the precise question”) (citations omitted).

Junior v. United States, 634 A.2d 411 (D.C.1993), cited by our dissenting colleague, holds that a motion for a new trial pursuant to Rule 33 is not a § 23-110 motion for purposes of § 23-110(e), which provides that a trial judge is not required to entertain successive § 23-110 motions. The case has nothing to do with the time limitations applicable to motions for a new trial based on newly discovered evidence.

11 . The Attorney General of the United States, the nation’s chief prosecutor, eloquently urged more than half a century ago that no time limit be placed on such motions. See the Appendix to this opinion.

12 .The Supreme Court’s adoption of Rule 33, and its rejection of the proposal that time limitations be abolished for motions based on newly discovered evidence,

not only show[] a deliberate intention to limit to two years the time within which a new trial may be asked on the ground of newly discovered evidence, but also negative[] any intention to equate this procedure with that having relation to relief for the deprivation of constitutional rights, which if it amounted to a denial of due process might be made the subject of motion in the nature of application for writ of error coram nobis at any time.

Howell v. United States, 172 F.2d 213, 216 (4th Cir.) (citation omitted), cert. denied, 337 U.S. 906, 69 S.Ct. 1048, 93 L.Ed. 1718 (1949); see also Kaplan, supra, 101 F.Supp. at 14. Judge Weinfeld also explained in Kaplan that 28 U.S.C. § 2255—the federal analogue of § 23-110—is a "codification of the common law writ of coram nobis." 101 F.Supp. at 11.

13 . Local Rule 33 provides, as does its federal counterpart, that a motion for a new trial based on grounds other than newly discovered evidence must be filed within seven days after adjudication of guilt.

14 . 28 U.S.C. § 2255 is the federal counterpart of D.C.Code § 23-110.

15 . Texas, where Herrera was convicted, is one of seventeen states that required such motions to be filed within sixty days of judgment. 506 U.S. at 410, 113 S.Ct. 853.

16 . The Supreme Court has recognized that "death is a different kind of punishment from any other which may be imposed in this country.” Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion) (citations omitted). Obviously, not all protections afforded to defendants in capital cases are automatically available to persons not facing the death penalty.

17 . The Court observed that the defendant ”ha[d] yet to apply for a pardon, or even a commutation, on the ground of innocence or otherwise.” 506 .U.S. at 416, 113 S.Ct. 853.

18 . The appellants in this case likewise have the right to seek executive clemency. See, e.g., United States v. Harrison, 136 U.S.App. D.C. 109, 113 n. 7, 419 F.2d 691, 695 n. 7 (per curiam), cert. denied, 396 U.S. 974, 90 S.Ct. 465, 24 L.Ed.2d 442 (1969).

19 . Other parts of the Herrera decision also bear on the proper disposition of these appeals. In Herrera, the defendant sought federal habeas corpus review on the ground that the murders of which he had been convicted were actually committed by his brother. Raul Herrera. Sr. (since deceased), and that the execution of an innocent man would be unconstitutional. He supported his motion with affidavits by Raul Herrera, Jr., the defendant's nephew, who claimed to have seen his father commit the murders, and by several other individuals to whom Raul Herrera, Sr. had allegedly confessed the crimes. Holding that the defendant was not entitled to a hearing on his motion, and that a claim of actual innocence, standing alone, is not constitutionally based, the Court went on to state:

Petitioner’s affidavits are particularly suspect ... because, with the exception of Raul Herrera, Jr.’s affidavit, they consist of hearsay. Likewise, in reviewing petitioner’s new evidence, we are mindful that defendants often abuse new trial motions "as a method of delaying enforcement of just sentences.” United States v. Johnson, 327 U.S. 106, 112, 66 S.Ct. 464, 90 L.Ed. 562 (1946). Although we are not presented with a new trial motion per se, we believe the likelihood of abuse is as great— or greater — here.

The affidavits filed in this habeas proceeding were given over eight years after petitioner's trial. No satisfactory explanation has been given as to why the affiants waited until the llth hour — and, indeed, until after the alleged perpetrator of the murders himself was dead— to make their statements. Cf. Taylor v. Illinois, 484 U.S. [400] at 414 [108 S.Ct. 646, 98 L.Ed.2d 798 (1988)] ("[I]l is ... reasonable to presume that there is something suspect about a defense witness who is not identified until after the llth hour has passed”).

This is not to say that petitioner’s affidavits are without probative value. Had this sort of testimony been offered at trial, it could have been weighed by the jury, along with the evidence offered by the State and petitioner, in deliberating upon its verdict. Since the statements in the affidavits contradict the evidence received at trial, the jury would have had to decide important issues of credibility. But coming 10 years after petitioner's trial, this showing of innocence falls far short of that which would have to be made in order to trigger the sort of constitutional claim which we have assumed, arguendo, to exist.

506 U.S. at 417-19, 113 S.Ct. 853.

It is noteworthy, in light of the foregoing discussion, that two of the persons to whom the appellants now ascribe guilt in this case, Jennings and Woods, are also dead, and that the delay in filing the motion was more than twice as long as that in Herrera. "[T]he passage of time only diminishes the reliability of criminal adjudications.” Id. at 403, 113 S.Ct. 853 (citations omitted). With Jennings and Woods no longer available to present their side of the story, it would be difficult, if not impossible, for the government to contest the new defense theory that these two dead men and an unidentified confederate, and not the appellants, participated with Jones in the murder of the decedent.

20 .Prejudice from joinder of defendants may arise “where the defendants present conflicting and irreconcilable defenses and there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty ...." Rhone v. Untied States, 125 U.S.App. D.C. 47, 48, 365 F.2d 980, 981 (1966) (per curiam) (citations omitted).

21 . The judge’s ruling did not affect the right of the defendants to pursue a blame-shifting defense directed at non-defendants, such as Woods and Jennings.

22 . The parties disagree as to how inflexible the judge’s rule was and as to the degree, if any, to which it prevented the appellants from presenting material exculpatory evidence. Because we conclude, in light of the decision in Sousa, that we lack authority to decide the merits of these contentions, we do not address the specific applications of the judge’s rule of which the appellants complain. Cf. the opinion of Judge Ruiz, post, at 528-29.

23 . Claiming that our analysis in this regard "misses the point of habeas review under § 23-110,” our dissenting colleague cites Kirk v. United States, 510 A.2d 499, 504 (D.C.1986) (per curiam) for the proposition that res judicata does not apply to § 23-110 proceedings and that the courts of the District of Columbia must be "eternally vigilant in ensuring that prisoners are not subject to unlawful incarceration.” In Kirk, however, the defendant was relying on a super-veiling change in applicable law which rendered the defendant’s sentence unconstitutional, and this court held that "a claim already rejected by an appellate court may be reconsidered on collateral attack in light of new law which would have exonerated the defendant had it been in force at the time of the direct appeal." Id. at 504 (emphasis added) (citing Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)). In this case, on the other hand, there has been no change in the substantive law relating to the scope of the right to cross-examination. Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), relied on by our dissenting colleague, post at 516 n. 4, does not deal with that issue or expand that right.

Context is important. “It is well to remember that significance is given to broad and general statements of the law only by comparing the. facts from which they arise with those facts to which they supposedly apply.” Khiem v. United States, 612 A.2d 160, 164 (D.C.1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993) (quoting Kraft v. Kraft, 155 A.2d 910, 913 (D.C.1959)). "[Wjords of our opinions are to be read in light of the facts of the case under discussion .... General expressions transposed to other facts are often misleading.” Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 (1944). The language from Kirk quoted by our dissenting colleague has no bearing on cases in which there has not been a dispositive change in the law.

24 . We do not suggest that the trial judge lacked jurisdiction to consider the appellants' constitutional claims. Rather, the judge was required to reject these claims under the authority of Sousa, for the appellants have not alleged facts bringing the case within Doepel or Palumbo.

25 . Even if this division, and the motions judge, had the authority to second-guess the decision in Sousa — and we hold that such authority is lacking — it would surely be incumbent on a trial judge or a successor division, when asked to disregard a decision by a predecessor division, to exercise considerable restraint, and to reverse the earlier holding only if that holding was plainly and obviously wrong. If it were necessary to decide that question, we would be most reluctant to conclude that the appellants have satisfied such an exacting standard.

The right of cross-examination is "an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (citation and internal quotation marks omitted). "[T]he Confrontation Clause[, however,] guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per cu-riam) (emphasis in original) (citation omitted). "[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination ...." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Gardner v. United States, 698 A.2d 990, 997 (D.C.1997).

Under the trial judge's rule, each appellant remained free to argue that the evidence against him was weak, and he was not precluded from attempting to shift blame to non-defendants. The appellants have, in our view, failed to demonstrate that there was evidence available to them at the time of trial which could have had a significant impact on the outcome if tire rule had been relaxed.

26 .In Winfield v. United States, 676 A.2d 1 (D.C.1996) (en banc), this court expanded in some measure the circumstances under which a criminal defendant may present evidence that another person committed the offense of which the defendant is accused. The trial judge's ruling now at issue, however, applied only to evidence incriminating a codefendant, and it was not based on the "clearly link” requirement that Winfield abolished. Moreover, the appellants do not claim that the law as stated in Winfield applies retroactively to cases concluded prior to the issuance of that decision.

27 . The appellants do assert that, by restricting the degree to which their attorneys would be permitted to examine and cross-examine witnesses, the trial judge rendered the attorneys ineffective. This somewhat unusual type of claim of ineffective assistance, however, is secondary to, and depends upon, a showing that, the judge improperly restricted the attorneys. The appellants cannot prevail unless they can persuade a division of this court to hold that the trial judge’s substantive rulings, affirmed by an earlier division of this court in Sousa, were unconstitutional.

28 . The appellants assert that the failure of the court in Sousa to address expressly the propriety of the judge’s restrictions on cross-examination constitutes a "special circumstance” warranting reconsideration of the issue by this division. We cannot agree. Parties who have been unsuccessful in the trial court, such as these appellants, often raise a "multitude" of contentions on appeal. See Sousa, supra, 400 A.2d at 1038 n. 1. An appellate court’s congested calendar often requires summary treatment of at least some of these issues. If unnecessary prolixity is to be avoided, the finality of a decision of this court cannot be permitted to depend on the expansiveness with which a particular issue was addressed.

The appellants also claim that the "actual innocence of the [ajppellants” and "the constitutional importance of the issue” constitute "special circumstances.” But many or most defendants who collaterally attack their convictions claim to be innocent, and every constitutional contention may be viewed as important. To adopt the appellants’ broad reading of “special circumstances" would undermine accepted notions of finality, and would reopen a multitude of criminal convictions to collateral attack years after judgment.

29 .E.g., the appellants’ most important new exculpatory witness, Steven Jones, was telling a completely different story at the time of trial.

30 .At trial, perhaps on account of the judge's rule, counsel for appellants did not interrogate Jones. If counsel had been armed with Jones’ 1993 affidavit, they would doubtless have attempted to elicit from him evidence that he was present when Battle was murdered and that the appellants played no role in Battle's death. We can only speculate whether or how the judge would have applied his rule under these circumstances, but the question never arose.

31 . Although Schlup forms the centerpiece of Judge Ruiz' opinion, the case is not mentioned at all in the appellants' main brief, and only tangentially in their reply brief.

32 . We note that the analysis in Schlup has also been applied to cases not involving the death penalty. See, e.g., Cornell v. Nix, 119 F.3d 1329, 1332-33 (8th Cir.1997).

33 . Diamen and Eastridge had previously filed unsuccessful motions pursuant to § 23-110, and the trial judge was not required to entertain successive motions. D.C.Code § 23-110(e); see Dantzler v. United States, 696 A.2d 1349, 1355 (D.C.1997). Because this is Sousa’s first collateral attack on his conviction, however, and because his claims are identical to those presented by the other two appellants, we have treated the substantive issues as though they had been preserved, for purposes of § 23-110(e), by all three appellants.

34 . In light of our decision, we also conclude that the motions judge did not err in denying the appellants’ related request for discovery and access to grand jury information.

35 . In Kaplan, Judge Weinfeld joined the defendant and the prosecutor in urging executive clemency. Id.

36 . According to an affidavit filed by an investigator for Centurion Ministries, the president of the Pagan Motor Club (PMC) told her that the club would cooperate in her investigation “so long as it did not involve living PMC members as having been involved in the [mjurder.” Explaining his long delay in coming forward and exonerating the appellants, Stephen Jones likewise referred to the "Pagan Code,” under which "no Pagan was ever to turn another Pagan in to the police for any reason, even if another Pagan had been arrested falsely for the same crime.” It may not be a coincidence that Jones and other former Pagans now assert that the two men whom they accuse of the crime — Woods and Jennings — are no longer alive.

37 . We have made Attorney General Cummings’ views an Appendix to this opinion.

38 . We do not, however, decide that question.