(caption unavailable)

* Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-4379
Summary Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGINALD DEAN,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Eastern District of Texas
(TY 85 51CR)
______________________________________________
(October 12, 1993)
Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.*
GARWOOD, Circuit Judge:
Petitioner-appellant Reginald Dean (Dean) appeals the district
court's denial of his "Motion to Vacate Judgment in Memorandum
Opinion Denying Petitioner's Post Judgment Motions and for the
Court to Reconsider the Motions II." We find that because Dean
failed to timely appeal the district court's decision on his

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1 Both the first indictment and the superseding indictment
charged Dean with conspiracy (18 U.S.C. § 371); three counts of
armed robbery (18 U.S.C. § 2113(a)(d)); two counts of kidnapping
(18 U.S.C. § 2113(a)(e)); and carrying a weapon in the commission
of a crime of violence (18 U.S.C. § 924(c)). The superseding
indictment added charges for felon in possession of a firearm (18
U.S.C. § 1202(a)) and possession of cocaine (21 U.S.C. §§
841(1)(1), 844).
2
underlying substantive claims, we are without jurisdiction to
review the district court's underlying judgment. Moreover, to the
extent that Dean's claims are properly before us, we find no abuse
of discretion in the denial of Dean's motion. Accordingly, we
affirm the district court's denial of Dean's motion.
Facts and Proceedings Below
On September 19, 1985, Dean was arrested and charged with the
robbery of the First National Bank of Bullard in Bullard, Texas.
On September 26, 1985, the United States Grand Jury returned an
eight count indictment against Dean on charges arising out of the
Bullard robbery and also the March 11, 1985, robbery of the Tyler
National Bank in Tyler, Texas.
On November 7, 1985, Dean came before the United States
District Court for the Eastern District of Texas on a signed plea
agreement. Rather than plead guilty, however, Dean withdrew from
the plea agreement and decided to go to trial.
On December 11, 1985, the grand jury returned a superseding
indictment charging Dean with the same offenses as charged in the
earlier indictment and two additional offenses.1 On March 7, 1986,
the district court ordered separate trials for each of the two bank
robberies. On March 14, 1986, a jury convicted Dean of various

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2 Dean was found guilty of two counts of armed bank robbery,
one count of armed bank robbery and kidnapping, carrying a weapon
in the commission of a crime of violence, and felon in the
possession of a firearm. In addition, the jury found Dean guilty
of possession of cocaine.
3 Dean was convicted of conspiracy (18 U.S.C. § 371); armed
robbery (18 U.S.C. § 2113(a)(d)); kidnapping (18 U.S.C. §
2113(a)(e)); and carrying a weapon in the commission of a crime
of violence (18 U.S.C. § 924(c)).
4 Dean also claimed three additional grounds for relief:
namely, (1) double jeopardy for retrial and conviction following
a mistrial; (2) the illegal search of Dean's automobile; and, (3)
the failure of the government to disclose favorable evidence.
3
charges arising out of the Bullard bank robbery.2
On April 7, 1986, trial began on the severed charges against
Dean and a codefendant for the robbery of the Tyler National Bank,
but a mistrial was declared after the testimony of the government's
first witness. A second trial on the same charges began on June 3,
1986, and on June 6, the jury found Dean guilty on the four counts
involved in the severed proceeding.3 On July 25, 1986, the
district court sentenced Dean and entered a judgment of conviction.
On July 31, 1986, Dean filed a notice of appeal; on February 17,
1987, this Court affirmed his conviction in an unpublished opinion.
United States v. Dean, No. 86-2620 (5th Cir. Feb 17, 1987)
(unpublished).
On November 23, 1988, Dean filed a motion in the district
court to vacate judgment under 28 U.S.C. § 2255. In his motion,
Dean claimed the following three grounds for relief, among others.4
First, Dean argued that the government had violated the rule of
Batson v. Kentucky, 106 S.Ct. 1712 (1986), through its use of
peremptory strikes to eliminate black jurors from the jury panel.

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5 Specifically, Dean argued that the district court should
have required him to serve his sentence for violation of 18
U.S.C. § 924 before serving his sentence for violation of 18
U.S.C. § 2113(a)(d), and that the court's failure to do so
violated congressional intent as to the order of the sentences.
4
Second, Dean claimed that the district court had imposed his
sentences in improper order.5 Finally, Dean asserted the
ineffective assistance of appellate counsel for the failure to
raise a Batson claim on direct appeal. On May 14, 1990, after
considering the merits of Dean's motion, the district court adopted
a magistrate judge's recommendation that the motion be denied. The
district court then dismissed the motion with prejudice.
On May 24, 1990, Dean filed a timely served motion to
reconsider the district court's May 14, 1990, judgment under Rule
59(e) of the Federal Rules of Civil Procedure. On May 29, 1990,
Dean filed a notice of appeal from the May 14, 1990, judgement.
The district court, however, had not ruled on the Rule 59(e)
motion. This Court, on July 10, 1990, dismissed Dean's appeal,
concluding that his notice of appeal had been nullified by the
pending Rule 59(e) motion. United States v. Dean, No. 90-4445 (5th
Cir. Jul. 10, 1990) (unpublished). In our order, we provided
notice to Dean that he could file a new notice of appeal within
sixty days from the date of the district court's ruling on his May
24, 1990, Rule 59(e) motion. Id. at 2.
On October 17, 1990, the district court denied Dean's Rule
59(e) motion because the court concluded that it was based on the
same issues Dean had raised in the section 2255 motion he was
seeking to have reconsidered. Thereafter, on November 5, 1990,

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5
rather than filing a notice of appeal from the district court's
final judgment on his section 2255 motion, Dean filed, pursuant to
Federal Rule of Civil Procedure 60(b), a motion to reconsider the
October 17, 1990, denial of his Rule 59(e) motion. As grounds for
relief, Dean's Rule 60(b) motion alleged (1) the government's
improper use of peremptory challenges to strike black jurors under
Batson; (2) the district court's imposition of a five-year sentence
under 18 U.S.C. § 924(c) in violation of the ex post facto clause;
(3) double jeopardy for the conviction on multiple counts for the
same offense; and (4) ineffective assistance of counsel for the
failure to request lesser-included-offense instructions.
The magistrate judge, noting that while Dean's Rule 60(b)
motion restated many of his earlier claims it also raised new
claims, directed the government to address both the merits of the
new claims as well as the issue of whether the procedural
constraints of a habeas corpus petition prevented the court from
addressing new claims if coupled with repetitive claims. The
government argued that the merits of Dean's claims need not be
reached because his Rule 60(b) motion was simply a request to
reconsider the court's denial of his original section 2255 motion
and thus could not be construed as a new section 2255 petition, or,
alternatively, if Dean's motion could be characterized as a section
2255 motion, he was precluded from litigating issues decided in the
earlier section 2255 motion by Rule 9(b) of the Rules Governing
Section 2255 Proceedings in the United States District Court.
The magistrate judge's report recommended that the district
court deny all of the claims raised in Dean's Rule 60(b) motion

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6 With respect to the remaining two claims, the magistrate
judge concluded that (1) because Dean's conviction and five-year
sentence were valid under the law applicable to offenses
committed at the time of the Tyler bank robbery, there was no ex
post facto violation, and (2) because no lesser-included-offense
instructions were proper, Dean's counsel was not ineffective.
6
except the double jeopardy claims. The magistrate judge determined
that the Batson claim was the same claim that the district court
had dismissed with prejudice in its May 14, 1990, order, and since
there had been no intervening change in the law warranting its
reconsideration, Rule 9(b) barred its substantive review. Because
the double jeopardy grounds raised new claims, however, the
magistrate judge concluded that they were not barred by Rule 9(b)
and thus subject to collateral review under section 2255.6 After
considering the merits of the double jeopardy claims, the
magistrate judge recommended that because Dean's convictions on
counts two and three were based on the same conduct, one of the two
counts should be vacated. Similarly, because Dean's convictions on
counts six and seven were based on the same conduct, the magistrate
judge also recommended that one of these counts should be vacated.
After de novo review, the district court on January 29, 1992,
adopted the recommendations of the magistrate judge, vacating the
convictions and sentences under counts three, four, and seven, and
denying the remainder of Dean's motion. Subsequently, Dean timely
filed a motion to vacate the January 29, 1992, judgment, which the
district court denied by orders of March 13 and 18, 1992. Dean
timely filed notice of appeal to this Court.
Discussion
I. Scope of Review

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7 It is the rule in this Circuit that "any post-judgment
motion to alter or amend the judgment served within ten days
after the entry of the judgment, other than a motion to correct
purely clerical errors covered by Rule 60(a), . . . must, however
designated by the movant, be considered as a Rule 59(e) motion
for purposes of Fed.R.App.P. 4(a)(4)." Harcon Barge Co., Inc. v.
D & G Boat Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986) (en
banc). "If, on the other hand, the motion asks for some relief
other than correction of a purely clerical error and is served
after the ten-day limit, then Rule 60(b) governs its timeliness
and effect." Id.
7
In his appeal, Dean asserts three points of error. First,
Dean contends that the district court erred in adopting the
magistrate judge's report, which concluded that Dean lost his right
to appeal the denial of the November 23, 1988, section 2255 motion
due to his failure to timely give notice of appeal. The key issue
here is whether Dean's filing of a Rule 60(b) motion rather than
filing a notice of appeal bars subsequent, substantive review of
the court's denial of his May 24, 1990, Rule 59(e) motion.
The timely service of a Rule 59(e) motion tolls the period for
filing a notice of appeal of the underlying judgment, and that
period begins to run only upon entry of an order disposing of the
motion. See Fed. R. App. P. 4(a)(4)(iii).7 The district court
denied Dean's Rule 59(e) motion on October 17, 1990. Despite our
order informing Dean that he had sixty days from the denial of the
Rule 59(e) motion to file a notice of appeal of his underlying
section 2255 motion, he failed to do so. Because "[a]dherence to
this time limitation is mandatory and jurisdictional," Dean's
failure to appeal in time bars subsequent review. Pryor v. United
States Postal Serv., 769 F.2d 281, 284 (5th Cir. 1985). His
November 5, 1990, Rule 60(b) motion had no effect on the time for

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8
filing notice of appeal from the October 17, 1990, order or the May
14, 1990, judgment. See Harcon Barge Co., Inc. v. D & G Boat
Rentals, Inc., 784 F.2d 665, 667 (5th Cir.) (en banc), cert.
denied, 107 S.Ct. 398 (1986). Hence, Dean lost his chance to
appeal the denial of his section 2255 motion.
Dean contends that the appellate limitation period was tolled
when the district court amended its judgment in response to his
second motion for reconsideration. Dean relies on our decision in
Harrell v. Dixon Bay Transp. Co., 718 F.2d 123 (5th Cir. 1983), for
the proposition that an order amending final judgment tolls the
time period for appeal. Dean reads Harrell too broadly. In
Harrell, after judgment was rendered in favor of the plaintiff, the
defendant timely moved under Rules 50 and 59(e) for judgment
notwithstanding the verdict, and the district court granted the
motion in part. We held that, to the extent that the district
court granted the defendant's motion, the amended judgment
represented the first adverse judgment against the plaintiff.
Thus, we concluded that the plaintiff's appeal, filed within thirty
days of the denial of the plaintiff's post-amended-judgment Rule
59(e) motion, was timely.
Unlike Harrell, in the case sub judice, the district court
amended its judgment in favor of Dean. The plaintiff in Harrell
was allowed to appeal only that part of the district court's
judgment that was amended. Here, Dean does not seek review of the
issues that prompted the district court to amend the judgment;
instead, he seeks review of issues dismissed with prejudice in the
district court's May 14, 1990, order. Moreover, Harrell involved

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9
timely Rule 59(e) motions; here we are concerned with what is
concededly a Rule 60(b) motion, filed after the time for filing any
of the motions listed in Fed. R. App. P. 4(a)(4). Because Dean was
given notice of and, without any acceptable excuse, failed to
exercise his right of appeal of the district court's judgment, he
cannot now come through the back door to seek review of the claims
raised in his initial section 2255 motion.
Dean's second and third points of error simply reassert two
claims previously advanced in his original section 2255 motion.
His second point of error is that the district court erred in
concluding that he was not entitled to relief for the ineffective
assistance of counsel based on counsel's failure to raise the
Batson claim on direct appeal. Dean's third point of error is that
the district court erred by not granting him relief for the
imposition of sentences in improper order. These claims were
argued in Dean's November 23, 1988, section 2255 motion, and were
rejected by the district court. As explained above, because Dean
failed to timely appeal the district court's judgment, we are
without jurisdiction to conduct a full substantive review of these
last two claims. We consider, at most, whether the denial of Rule
60(b) relief in respect thereto was an abuse of discretion. We
note that Dean has advanced no basis for relief in support of these
claims that was not advanced in his original section 2255 motion or
in his May 24, 1990, Rule 59(e) motion. Nor, as noted, has he
given an acceptable reason for failing to timely appeal the
district court's October 17, 1990, order.
II. Ineffective Assistance of Counsel

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10
Dean contends that the district court should have found that
his counsel's failure to raise the Batson claim on direct appeal
constituted ineffective assistance of counsel. Ineffective
assistance of counsel claims are reviewed for federal
constitutional error under the two-prong standard of Strickland v.
Washington, 104 S.Ct. 2052 (1984). To satisfy this standard a
criminal defendant must establish: "First, . . . that counsel's
performance was deficient. . . . Second, the defendant must show
that the deficient performance prejudiced the defense. This
requires showing that counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings, it cannot be
said that the conviction . . . resulted from a breakdown in the
adversarial process that renders the result unreliable."
Strickland, 104 S.Ct. at 2064.
Dean's ineffective assistance claim is based on his attorney's
failure to raise on appeal a claim for the government's improper
use of peremptory challenges in violation of Batson v. Kentucky,
106 S.Ct. 1712 (1986). Here, Dean was represented by the same
counsel at trial and on direct appeal. Dean's counsel raised the
Batson issue at trial and the trial court held a hearing to
determine whether the government's reasons for striking the black
jurors were discriminatory. Although he did not raise a Batson
claim on direct appeal, Dean's counsel raised several substantive
claims. In determining whether counsel's failure to include a
Batson claim on appeal rendered his performance deficient we "must
indulge a strong presumption that counsel's conduct falls within

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11
the wide range of reasonable professional assistance." Strickland,
104 S.Ct. at 2065. We cannot now say that his failure to raise
this issue, already decided by the district court, so clearly
amounted to deficient performance that denial of Rule 60(b) relief
from denial of section 2255 relief in respect thereto amounts to an
abuse of discretion.
Even if Dean's counsel's performance were deficient, Dean
would still be required to demonstrate prejudice. The standard for
establishing prejudice under Strickland is that the "defendant must
show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different." Id. at 2068. In the case sub judice, Dean must
demonstrate that had his counsel raised a Batson claim on appeal,
he would have been entitled to relief.
The Supreme Court held in Batson that a defendant can
establish an equal protection violation based on the government's
use of peremptory challenges to remove black veniremen from the
jury in his case. Batson, 106 S.Ct. at 1723. If the defendant
establishes a prima facie case that the prosecutor used peremptory
challenges to remove potential jurors because of their race, the
burden shifts to the government to provide race neutral
explanations. Id.; see also United States v. Maseratti, 1993 WL
326573 (No. 90-2783, 5th Cir. August 27, 1993; slip op. 6461).
Immediately after the jury was seated in the Tyler bank
robbery trial, Dean's counsel filed a motion for a mistrial. The
motion complained that of the thirty-six members of the jury panel
who were eligible to serve, all five black members were struck,

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12
although none were challenged for cause. The district court held
a hearing and determined that of the five jurors struck, three were
struck by the government, one was struck by the government and
Dean's codefendant, and one was struck by Dean himself.
The court directed the government to provide its reasons for
striking the four black members of the panel. In response, the
government stated that they struck one juror because she was
sleeping during voir dire; another juror was stricken because he
had stated in the voir dire for the case preceding Dean's that he
could not follow the court's instructions; a third juror was
stricken because she appeared to have trouble hearing the questions
during voir dire; the government struck a fourth juror because he
was an employee of the county commissioner, and the government was
concerned about possible hostility as a result of recent federal
prosecutions of commissioners for a kickback scheme. The court
denied Dean's motion for a mistrial, concluding that the
government's reasons, although "highly trivial," were legitimate
and facially nondiscriminatory.
When a district court makes a ruling on a charge of
discriminatory use of peremptory challenges, we review the district
court's findings "under 'either a "clearly erroneous" or "great
deference" standard.'" United States v. Lance, 853 F.2d 1177, 1181
(5th Cir. 1988) (quoting United States v. Forbes, 816 F.2d 1006,
1010 (5th Cir. 1987)). From the record before us, we conclude that
the district court did not so clearly err in its determination that
the reasons offered by the government for striking the black jurors
were race neutral that denial of Rule 60(b) relief from denial of

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8 In Maseratti, the court found that government explanations
for striking minority jurors were race neutral when one black
juror was struck because "she appeared to be sleeping during part
of the voir dire" and a second black juror was struck because
"she also was not paying attention during the voir dire, and
because the prosecutor did not like the fact that she was a City
of Houston employee."
13
section 2255 relief in this respect constituted an abuse of
discretion. Cf. Maseratti, supra.8
"Once a prosecutor has offered a race-neutral explanation for
the peremptory challenges and the trial court has ruled on the
ultimate question of intentional discrimination, the preliminary
issue of whether the defendant had made a prima facie showing
becomes moot," Hernandez v. New York, 111 S.Ct. 1859, 1866 (1991);
the defendant must then prove racially discriminatory intent or
purpose on the part of the government to show a violation of the
Fifth Amendment. Arlington Heights v. Metropolitan Hous. Dev.
Corp., 97 S.Ct. 555, 563 (1977). Dean offers no other evidence of
discriminatory motive to rebut the government's explanations.
For these reasons, Dean has not shown that it was an abuse of
discretion to deny Rule 60(b) relief from the denial of section
2255 relief on his ineffective assistance of counsel claim.
III. Imposition of Sentences in Improper Order
Dean's final point of error is that the district court erred
in adopting the magistrate judge's report, which recommended no
relief on Dean's claim that the district court imposed his
sentences in improper order. Like the ineffective assistance of
counsel claim, the issue of the sequence of sentences was also
argued in his first section 2255 motion and, therefore, is not

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9 Report of the Senate Committee on the Judiciary, S.Rep
No.225, 98 Cong., 2d Sess. 313-14 (1983), reprinted in 1984
U.S.C.C.A.N. 3182, 3492. The comment reads, in relevant part,
"[T]he Committee intends that the mandatory sentence
under the revised subsection 924(c) be served prior to
the start of the sentence for the underlying or any
other offense. For example, a person convicted of
armed robbery in violation of section 2113(a) and (d)
and of using a gun in its commission . . . would have
to serve five years . . . less only good time credit
for proper behavior in prison, before his sentence for
the conviction under section 2113(a) and (d) could
start to run."
14
properly before this Court. Clearly, the district court did not
abuse its discretion in denying Rule 60(b) relief from the section
2255 denial of this claim.
In his instant appeal, Dean argues that the district court
erred in ordering him to serve his sentences for counts 5 and
8SQcarrying a weapon in the commission of a crime of violence in
violation of 18 U.S.C. § 924(c)SQconsecutive to his sentences for
the related counts 2 and 3SQarmed bank robbery in violation of 18
U.S.C. § 2113(a)(d). Dean contends that in enacting section
924(c), Congress intended the sentence to be served before a
sentence for the underlying offense. In support of his contention,
Dean quotes a comment regarding section 924(c) in the relevant
Senate Judiciary Committee report, which states, in substance, that
the Committee intended that a sentence for a section 924(c) offense
be served prior to a sentence for a section 2113(a)(d) offense.9
The magistrate judge's report acknowledged that the Committee
comment literally states that the Committee intended a section
924(c) sentence to be served first. The magistrate judge's report

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15
concluded, however, that a review of the Committee Report as well
as the history and purpose of the enactment of section 924(c)
reveals that Congress was not concerned with the distinction
between "prior" and "subsequent," but rather with the sentences
being "consecutive" or "cumulative." To support her conclusion,
the magistrate judge looked to the language of the statute, which
says nothing about the proper sequence of a section 924(c)
sentence, but does expressly prohibit the sentence from being
served concurrently with any other sentence. The magistrate judge
further concluded that, even if Dean were correct in his contention
about the proper ordering of his sentences, he had failed to
demonstrate that he had suffered any harm from the way his
sentences were actually imposed. The report recommended no relief
for Dean's section 924(c) claim, and the district court adopted the
magistrate judge's recommendation.
We need not go beyond the statute itself to determine the
merits of Dean's claim. "[T]he starting point for interpreting a
statute is the language of the statute itself." Consumer Prod.
Safety Comm'n v. GTE Sylvania, Inc., 100 S.Ct. 2051, 2056 (1980).
"If the language is clear and unambiguous, then a court may end its
inquiry." United States v. Sosa, 997 F.2d 1130, 1132 (5th Cir.
1993) (citing Rubin v. United States, 101 S.Ct. 698, 701 (1981)).
In those "rare cases [where] the literal application of a statute
will produce a result demonstrably at odds with the intentions of
its drafters, . . . those intentions must be controlling." Griffin
v. Oceanic Contractors, Inc., 102 S.Ct. 3245, 3250 (1982). Hence,
"the plain meaning of an unambiguous statute is controlling unless

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10 The full text of section 924(c)(1) provides:
"Whoever, during and in relation to any crime of
violence, including a crime of violence which provides
for an enhanced punishment if committed by the use of a
deadly or dangerous weapon or device, for which he may
be prosecuted in a court of the United States, uses or
carries a firearm, shall, in addition to the punishment
provided for such crime of violence, be sentenced to
imprisonment for five years. In the case of his second
or subsequent conviction under this subsection, such
person shall be sentenced to imprisonment for ten
years. Notwithstanding any other provision of law, the
court shall not place on probation or suspend the
sentence of any person convicted of a violation of this
subsection, nor shall the term of imprisonment imposed
under this subsection run concurrently with any other
term of imprisonment including that imposed for the
crime of violence in which the firearm was used or
carried. No person sentenced under this subsection
shall be eligible for parole during the term of
imprisonment imposed herein." 18 U.S.C. § 924(c)(1)
(amended October, 1984).
16
it clearly violates Congressional intent." Sosa, 997 F.2d at 1132-
33.
Here, the language of section 924(c) is unambiguous. The
statute expressly provides that a court may "not place on probation
or suspend the sentence of any person convicted of a violation of
[§ 924(c)]," and that "the term of imprisonment imposed under [§
924(c) may not] run concurrently with any other term of
imprisonment"; however, these restrictions are the only constraints
placed on the sentencing court by the statute.10 Section 924(c) is
silent about the order in which sentence should be imposed.
Because the statute contains no patent ambiguities, nor any
absurdities, the language of the Senate Committee Comment is
irrelevant. Thus, the district court did not err in imposing
Dean's section 924(c) sentence after the section 2113(a)(d)

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17
sentence in the first instance, and, a fortiori, the district court
did not err in adopting the magistrate judge's recommendation to
deny Dean's section 924(c) claim in his Rule 60(b) motion. Nor has
Dean alleged any specifics to show legal prejudice in respect to
the order of service of his sentences.
Conclusion
None of Dean's arguments on appeal demonstrate reversible
error in the district court's denial of his Rule 60(b) motion.
Because Dean failed to timely appeal the district court's decision
on his underlying substantive claims, we are without jurisdiction
to review the district court's May 14, 1990, judgment thereon and
its October 17, 1990, denial of Dean's Rule 59(e) motion in respect
thereto. Under the circumstances, the district court did not abuse
its discretion to the extent that it denied Dean's Rule 60(b)
motion. Therefore, the district court's orders of January 29,
1992, and March 13 and 18, 1992, are
AFFIRMED.

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