Unpublished Dispositionunited States of America, Plaintiff-appellee, v. George Knost, Defendant-appellant, 856 F.2d 196 (6th Cir. 1988)

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Knost seeks appointment of counsel in his appeal from the district court's denial of his Fed. R. Crim. P. 35(a) motion to correct his sentence. The defendant was found guilty by a jury of four offenses relating to the manufacture, possession and distribution of counterfeit currency and was sentenced to fifteen years. After an unsuccessful direct appeal, he filed his pro se Fed. R. Crim. P. 35(a) motion claiming perjured testimony, a post-conviction denial of grand jury transcripts, judicial violation of Fed. R. Crim. P. 32(c) (3) (D), and disparate sentencing as grounds for the correction of his sentence.

Upon review, we conclude that the district court was without jurisdiction to rule upon the Fed. R. Crim. P. 35(a) motion. The requisite length of time in which to file a Rule 35 motion is 120 days from the final resolution of the direct appeal process. See United States v. Sarduy, 838 F.2d 157, 158 (6th Cir. 1988). Knosts's Rule 35(a) motion was filed over two months beyond the expiration of the 120 day period. Fed. R. Crim. P. 35(b). We further conclude that the circumstances of this case do not warrant remand.

Accordingly, defendant's motion for appointment of counsel is denied and the judgment of the district court is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit. This dismissal is without prejudice to defendant's ability to assert his claims pursuant to 28 U.S.C. § 2255.