UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6126
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES GORMLEY,
Defendant - Appellant.
No. 04-6127
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES GORMLEY,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (CR-98-152)
Submitted: October 22, 2004 Decided: November 9, 2004
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Gormley, Appellant Pro Se. Michael Lee Keller, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 2 -
PER CURIAM:
In these consolidated cases, James Gormley appeals the
district court’s order denying a motion for new trial filed
pursuant to Fed. R. Crim. P. 33, and the court’s denial of
Gormley’s subsequent motion to reconsider that order. “The
decision to grant or deny a motion for new trial is within the
broad discretion of the district court.” United States v. Tucker,
376 F.3d 236, 238 (4th Cir. 2004). The district court should
exercise that discretion to grant a new trial sparingly, and only
when the weight of evidence is heavily against the verdict. United
States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003), cert. denied,
124 S. Ct. 1408 (2004). Gormley’s motion was timely only as a
motion for new trial based on newly discovered evidence. Fed. R.
Crim. P. 33(b). The district court properly considered this
Circuit’s five-part test for assessment of such a motion, see
United States v. Lofton, 233 F.3d 313, 318 (4th Cir. 2000), to find
that Gormley’s allegations do not warrant a new trial. Therefore,
we conclude that the district court did not abuse its discretion in
denying Gormley’s motion for new trial and his motion to reconsider
that denial.
In his motion to reconsider, Gormley also requested a writ of
mandamus against the Bureau of Prisons. We review a denial of
mandamus for abuse of discretion. Marquez-Ramos v. Reno, 69 F.3d
477, 479 (10th Cir. 1995). A plaintiff may be entitled to mandamus
- 3 -
relief “only if the defendant owes him a clear nondiscretionary
duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984). As Gormley
has not shown his clear entitlement to the specific relief
requested, we hold that the district court did not abuse its
discretion in denying the mandamus petition.
Thus, we affirm the decisions of the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
- 4 -