Harrison Smith, Petitioner-appellant, v. United States of America, Respondent-appellee, 68 F.3d 475 (6th Cir. 1995)

Before: MARTIN and BATCHELDER, Circuit Judges, and EDMUNDS, District Judge.^* 

ORDER

Harrison Smith appeals a district court order denying his motion for a new trial based on newly discovered evidence. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In 1990, a jury convicted Smith on two counts of violating the murder-for-hire statute, 18 U.S.C. § 1958. The district court sentenced Smith to 57 months of imprisonment. On appeal, this court affirmed Smith's conviction and sentence. United States v. Smith, Case No. 90-6290 (6th Cir. Oct. 29, 1991) (unpublished per curiam), cert. denied, 113 S. Ct. 1665 (1993).

Smith subsequently filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255, which the district court denied as meritless. On appeal, this court affirmed the denial of the motion. Smith v. United States, Case No. 94-6640 (6th Cir. June 16, 1995) (unpublished order).

Following the denial of his motion to vacate sentence, Smith filed a motion for a new trial based on newly discovered evidence. The district court determined that the motion was untimely and Smith's claims were without merit. Therefore, the district court denied the motion. Smith has filed a timely appeal, in which he requests permission to proceed in forma pauperis.

Upon review, we conclude that the district court properly denied Smith's motion as untimely. Smith was required to file his motion within two years after the issuance of this court's mandate in his direct criminal appeal on October 21, 1992. However, Smith did not file his motion until February 14, 1995. As his motion was untimely, the district court lacked jurisdiction to consider the motion and properly dismissed it. See United States v. Koehler, 24 F.3d 867, 869 (6th Cir. 1994), cert. denied, 115 S. Ct. 723 (1995).

Accordingly, we grant Smith's request to proceed in forma pauperis for the limited purpose of review on appeal and affirm the district court's judgment. Rule 9(b) (3), Rules of the Sixth Circuit.