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U.S. v. McCARNS, 2:08-cr-0116 KJM. (2015)

Court: District Court, E.D. California Number: infdco20151130b44 Visitors: 8
Filed: Nov. 25, 2015
Latest Update: Nov. 25, 2015
Summary: ORDER KIMBERLY J. MUELLER , District Judge . Defendant Domonic McCarns is proceeding through counsel with a motion for new trial based on Federal Rule of Criminal Procedure 33. Defendant claims he received constitutionally ineffective assistance of counsel and he requests an evidentiary hearing to explore trial counsel's reasoning "relative to the allegations the defense has leveled against him." ECF No. 726 at 4. By order filed October 27, 2015, the parties were ordered to show cause in wr
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ORDER

Defendant Domonic McCarns is proceeding through counsel with a motion for new trial based on Federal Rule of Criminal Procedure 33. Defendant claims he received constitutionally ineffective assistance of counsel and he requests an evidentiary hearing to explore trial counsel's reasoning "relative to the allegations the defense has leveled against him." ECF No. 726 at 4. By order filed October 27, 2015, the parties were ordered to show cause in writing why defendant's motion should not be denied without prejudice to his right to pursue his ineffective assistance of counsel claims in collateral proceedings under 28 U.S.C. § 2255. ECF No. 745 at 4. Defendant has filed a request for leave to file a response to the order to show cause that exceeds the twenty-page limit required by this court's standing order governing page limits on briefs filed in criminal proceedings.

In support of the request, defendant contends that "[i]n order to appropriately respond" to the order to show cause he must analyze the prejudice prong of his ineffective assistance of counsel claims. As noted in the order to show cause, defendant has not in his moving papers or his reply brief discretely analyzed the prejudice prong of his ineffective assistance of counsel claim. See ECF No. 745 at 3-4. The purpose of the order to show cause was not to permit defendant to cure the omission in the briefing already before the court, but rather to focus attention on whether defendant's ineffective assistance of counsel claims are more appropriately resolved in a § 2255 motion. Indeed, defendant's representation that it will take more than twenty pages to demonstrate the prejudice he allegedly suffered adds to the court's tentative conclusion that a Rule 33 motion may not be the appropriate vehicle for addressing his ineffective assistance of counsel claims. See ECF No. 745 at 2-3.

For the foregoing reasons, IT IS HEREBY ORDERED that defendant's November 24, 2015 request to exceed page limits, ECF No. 749, is denied.

Source:  Leagle

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