Opinion
Cr. No. 6:01-239, C.A. No. 6:03-3760-HMH.
November 29, 2005
OPINION ORDER
This matter is before the court on Monstsho Eugene Vernon's ("Vernon") motion to reconsider the court's January 19, 2004, order ("January Order") dismissing his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In his motion to reconsider filed November 17, 2005, Vernon alleges that his counsel was "ineffective for allowing movant to plead to a [ 18 U.S.C. §] 924(c) firearm charge where what the movant possessed was a BB gun which is classified as a dangerous weapon." (Mot. Recons. 1.) This issue was raised in Vernon's § 2255 motion. Vernon appealed the court's dismissal of his § 2255 motion, and the court of appeals denied his request for a certificate of appealability and dismissed his appeal. United States v. Vernon, No. 04-6147, 2004 WL 1778383 (4th Cir. Aug. 9, 2004). "[A] lower court has no power or authority to deviate from the mandate issued by an appellate court but is bound thereby and cannot reopen questions which the mandate lays to rest. . . ."United States v. Cato Bros., Inc., 273 F.2d 153, 157 (4th Cir. 1959). As such, the court cannot reconsider this issue.
Houston v. Lack, 487 U.S. 266 (1988).
Further, Vernon alleges that the court should grant his motion to reconsider because he has newly-discovered evidence in the form of an affidavit from Vernon's co-defendant, Rodney Jones, stating that the weapon was a BB gun. However, even if the court were to conclude that the affidavit is newly-discovered evidence, a Rule 60(b) motion alleging newly-discovered evidence must be made within one year after the judgment was entered. See Fed.R.Civ.P. 60(b). More than one year has passed since judgment was entered. Therefore, Vernon's Rule 60(b) motion is untimely.
Therefore, it is
ORDERED that Vernon's motion to reconsider, document number 13, is denied.
IT IS SO ORDERED.