United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE
matter is before the Court upon the Motion for a New Trial
and/or to Dismiss his indictment with prejudice, brought pro
se by the Defendant Dwaune Gravley. [R. 341.] For the reasons
set forth below, Gravley's motions will be denied.
case arises out of events that occurred at U.S.P. Big Sandy
several years ago. On November 13, 2006, Shamoni Peterson was
found dead in cell D-240 in the Special Housing Unit. [R. 68
at 1.] Peterson had been transferred to that cell from
another unit the day before. [See id.] At the time
of his transfer and death, the cell was also occupied by
Darone Crawford, Darryl Marcus Milburne, and Dwaune Gravley.
[Id.] Milburne and Gravley were ultimately charged
with the murder. Milburne pled guilty to second degree
murder. Crawford was not charged and testified for the
government against Gravley. Gravley proceeded to trial on all
six-count Superseding Indictment [R. 190] charged Gravley
with conspiracy to commit murder, in violation of 18 U.S.C.
§ 1117; first degree murder, in violation of 18 U.S.C.
§ 1111(a); assault resulting in serious bodily injury,
in violation of 18 U.S.C. § 113(a)(6); conspiracy to
obstruct justice, in violation of 18 U.S.C. § 1512(k);
obstruction of justice, in violation of 18 U.S.C. §
1512(c)(1); and misprision of a felony, in violation of 18
U.S.C. § 4. The jury convicted him on all counts.
[See R. 297.] Gravley's first motion for a new
trial was denied. [R. 316.]
Gravley's claims liberally as a pro se filer, this Court
assumes he has filed a Rule 33 Motion for New Trial. Rule 33
establishes that “[u]pon the defendant's motion, [a
district] court may vacate any judgment and grant a new trial
if the interest of justice so requires.” U.S. v.
Munoz, 605 F.3d 359, 373 (6th Cir.2010); see also
Fed.R.Crim.P. 33(a). The phrase “interest[ ] of
justice” is not defined within the rule, and courts
have had marginal success in trying to “generalize its
meaning.” Id. (quoting United States v.
Kuzniar, 881 F.2d 466, 470 (7th Cir.1989)). Still,
several themes remain constant in the Rule 33 context. The
conventional use of a Rule 33 motion “is to seek a new
trial on the ground that ‘the [jury's] verdict was
against the manifest weight of the evidence.'”
Id. (quoting United States v. Crumb, 187
Fed.Appx. 532, 536 (6th Cir.2006)); see also United
States v. Legette-Bey, 147 Fed.App'x 474, 486 (6th
Cir.2005); United States v. Graham, 125
Fed.App'x 624, 628 (6th Cir.2005); United States v.
Solorio, 337 F.3d 580, 589 n. 6 (6th Cir.2003). Finally,
“[w]ith a Rule 33(a) motion for new trial on the ground
that the verdict is against the weight of the evidence, the
power of a court is much broader because a court may weigh
the evidence and consider the credibility of the
witnesses.” U.S. v. Dimora, 879 F.Supp.2d 718,
724 (N.D.Ohio 2012).
makes four arguments for a new trial. The first is that
Shumacker testified falsely by not stating that the duress
alarms have lights in Big Sandy USP. The second is that Woods
stated at a detention hearing he had no comment when asked if
he had perjured himself. The third that Ms. Canastor did not
adequately describe a plea agreement from the United States
Attorney's Office. The fourth is that the prosecutors
represented to the Detention Hearing Officer that Dr. Roff,
the Government's witness, does not exist. [See
R. 341 at 2.]
Gravley's request, he makes various factual claims that
should be supported by evidence in the record or attached to
his motion. Gravely does neither, except occasional
references to “exhibit A” and “exhibit
B.” Gravley filed no exhibits with his motion for a new
trial and the record in this case contains nearly 400 docket
entries. This Court cannot begin to guess which
“exhibit A” or “exhibit B” Gravley is
referencing. It is not the role of this Court to scour the
record for evidence of Gravley's allegations. See
Penn, LLC v. Prosper Bus. Dev. Corp., 600 Fed.Appx. 393,
403 (6th Cir. 2015) (“‘Judges are not like pigs,
hunting for truffles' that might be buried in the
record.”) (quoting United States v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991)).
the Court's discretion is wide in a Rule 33 Motion for a
New Trial, it must have new evidence to weigh against the
evidence presented at trial. Gravely has presented no such
evidence and his motion for a new trial is denied.
and for the reasons stated above, Gravley's Motion for a
New Trial and/or to Dismiss his ...