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United States v. Olivera

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 29, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JESUS DIAZ OLIVERA, ET AL. DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

On March 10, 2009, this Court referred Jose Maria Gomez Ortega's Request for Counsel on Appeal, Extension of Time to File Appeal, and for Copies of Documents to the Office of the Federal Defender (Docket No. 87). That Office responded notifying the Court that it had provided available documents to Defendant and that, if the Court granted the requested extension, it would locate CJA counsel to represent Defendant on appeal. For the following reasons, Defendant's Request for Extension is Denied, rendering moot both his Request for Appointment of Counsel and for copies of various documents.

Defendant's Motion is clearly untimely. Federal Rule of Appellate Procedure 4(b)(1)(A) requires that "[i]n a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after the later of: (I) the entry of either the judgment or the order being appealed; or (ii) the filing of the government's notice of appeal." Additionally, pursuant to Rule 4(b)(4), "[u]pon a finding of excusable neglect or good cause, the district court may - before or after the time has expired, with or without motion and notice - extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b)." Judgment was entered against Defendant on September 15, 2008, and Defendant took no action until the filing of his instant Motion on February 23, 2009. Thus, even if Defendant had shown excusable neglect or good cause, which he has not, his instant Request must be denied.

Finally, even if Defendant's Request were not untimely, by signing the plea agreement on July 1, 2008, Defendant agreed to give up his right to appeal, or to collaterally attack, his guilty plea or sentence. Accordingly, for all of the above reasons, Defendant's Request for Extension of Time is DENIED with prejudice, and his further Requests for Counsel and Documentation are DENIED as moot.

IT IS SO ORDERED.

20090429

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