exercise of reasonable diligence, before or during trial. Petitioner presents the Court with three expert reports that he obtained after the trial that petitioner asserts corroborate his version of the financing agreement between RRC and SCB. See Declaration of Walter Mack dated November 24, 1997 at Ex A-C. However, it was effectively conceded at oral argument that the reports, and the opinions and interpretations contained therein, were based upon documents available to the defense before and during the trial (and on direct appeal). See Arg.Tr. at 43-53. Expert reports such as the type presented to the Court here, based upon evidence available to the defense at trial, do not constitute new evidence. See Massaro v. United States, No. 97 Civ. 2971, 1998 WL 241625, at *2 (S.D.N.Y.1998) (<HOLDING>). Accordingly, to the extent petitioner’s
holding that a state agency proceeding did not constitute an action in a court of the united states or a state within the meaning of 33 usc  1365b1 holding evidence not to be material within the meaning of brady when the evidence did not eliminate the defendant as the perpetrator holding that newly available evidence does not constitute newly discovered evidence for pinposes of extending beyond seven days the time for filing a rule 33 motion holding that upon remand if the trial court determined that the testimony in a newly discovered evidence claim was reliable the trial court must review that new evidence as well as brady claims that were previously rejected in a prior postconviction motion because the evidence was equally accessible to the defense and there was no reasonable probability that the result of the trial would have been different had the evidence been disclosed holding that expert tests conducted by petitioner postconviction based upon evidence available to the defense at trial did not constitute new evidence within the meaning of rule 33