IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 18, 2008
UNITED STATES OF AMERICA, PLAINTIFF,
ANASTACIO GUZMAN-MARTINEZ, DEFENDANT.
The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER AMENDING JULY 17, 2008 ORDER DENYING ANY REQUEST THAT THE TIME FOR FILING A NOTICE OF APPEAL BE EXTENDED
On April 2, 2008, the court entered judgment pursuant to Defendant's guilty plea. On May 9, 2008, Defendant filed a pro se notice of appeal. On June 13, 2008, the Ninth Circuit held the appeal in abeyance and remanded the action to this court for the limited purpose of permitting this court to provide Defendant notice and an opportunity to request that the time for filing the notice of appeal be extended. On June 23, 2008, pursuant to the Ninth Circuit's order, the court provided Defendant with notice that the court could extend the time to file a notice of appeal for a period not to exceed thirty days upon a finding of excusable neglect or good cause. See Fed.R.App.P. 4(b)(4). The court gave Defendant leave to file a motion requesting the court extend the time to file an appeal within ten days. When over ten days passed, on July 17, 2008, the court issued on order declining to extend the time within which Defendant may file a notice of appeal.
A review of the court's docket reveals that on July 16, 2008, Defendant's appointed Counsel filed a response to the court's June 23, 2008 order. In light of the court's failure to address Defendant's Counsel's response earlier, the court hereby amends its July 17, 2008 order to include a consideration of Counsel's response.
The court has reviewed Counsel's response, and finds Counsel's response does not change the result of the July 17, 2008 order. In the response, Counsel states that as part of the plea agreement, Defendant waived the right to appeal. After sentencing, Counsel sent Defendant a copy of the judgment. When Defendant called Counsel, Counsel sent him a second copy of the judgment. While Counsel does not remember the precise discussion over the phone, Counsel believes she told Defendant that the time to file an appeal had passed. Counsel sent Defendant a copy of the court's June 23, 2008 order at Defendant's current place of incarceration because the address he provided to the court is a residence and not where Defendant is incarcerated. Counsel states in her response that Defendant has not contacted counsel. Counsel states that she does not know the exact reason why Defendant filed a late notice of appeal, but notes that the notice was filed soon after she sent Defendant the second copy of the judgment. Counsel states that the Defendant's pro se notice of appeal was a surprise to her.
The court finds that nothing in Counsel's July 16, 2008 response meets the standard for continuing the time to file an appeal. Counsel does not provide the court with excusable neglect or good cause to extend the time to file an appeal. In fact, it appears Counsel and Defendant have not discussed extending the time to file an appeal. Defendant has been provided with the orders concerning extending time to file an appeal, and Defendant has not responded to Counsel or directly to the court. Thus, the court cannot find that the standard for extending the time to file an appeal has been met.
Accordingly, the court ORDERS that:
1. The July 17, 2008 order is AMENDED to include consideration of Defendant's Counsel's response;
2. To the extent Defendant has requested an extension of time within which Defendant may file a notice of appeal, this request is DENIED because no excusable neglect or good cause have been shown; and
3. The Clerk of the Court is DIRECTED to serve copies of this order on: Anastacio Guzman-Martinez 13665 ADA St. Armona, CA 93202 Ann Hardgrove Voris Federal Defender 2300 Tulare Street Suite 330 Fresno, CA 93721 The Ninth Circuit Court of Appeals Peter L. Shaw, Appellate Commissioner Reference to Case 08-10216
IT IS SO ORDERED.
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