In September 1999, Alexander E. Eisemann, counsel for the defendant, indicated that he would move for a new trial on behalf of his client pursuant to Fed.R.Crim.P. 33. He was ordered to file such a motion by October 9, 1999; on defendant’s request, the time in which to file was extended to October 12, 1999. (Docket No. 72.) The relevant documents ” which included only a Notice of Motion, a Declaration of Alexander E. Esiemann (“ Esiemann Decl.”), and a Supplemental Declaration of Alexander E. Esiemann (“Supp’l Eisemann Decl.”) ” were filed on October 15, 1999. The Notice of Motion indicates that, pursuant to Rule 33, the defendant seeks and order (1) setting aside the jury’s verdict; (2) granting him a new trial; (3) granting him an evidentiary hearing to develop the underlying facts, (4) permitting him to amend and supplement his motion in light of further discovery, further review of existing materials and evidence developed during an evidentiary hearing; and (5) granting such other relief as the Court may deem just and proper.
The Eisemann Decl. proposed, however, that if the government opposed the filing as untimely under Rule 33, and if the Court agreed that the motion is indeed untimely under Rule 33, that the filing be deemed a petition for habeas corpus under 28 U.S.C. §2255.1 On April 21, 2003, Eisemann filed “Defendant’s First Amended and Supplemental Application to Vacate His Conviction” (“Amended and Supp’l Application to Vacate”) along with a “Declaration of Alexander Eisemann” (“Eisemann Decl. II”). The purpose of these later filings is “(a) to refine the allegations already made to conform them to proof already in the record, (b) to eliminate earlier allegations and arguments that defendant has elected to abandon and (c) to raise additional allegations that defendant intends to establish with evidence obtained through subpoenas . . . ” (Eisemann Decl. II 3.) The current application seeks the same relief as the first application filed in October 1999.
