Filed: Nov. 01, 2016
Latest Update: Nov. 01, 2016
Summary: ORDER CAROLYN K. DELANEY , Magistrate Judge . Movant has filed a motion seeking an extension of time to file a notice of appeal with respect to the court's August 24, 2016 order. In that order, the court found: A review of the court's docket reveals that the motion filed by movant in this action on June 15, 2016 (ECF No. 273) and pursuant to 28 U.S.C. 2255 was filed in error as movant challenges a conviction and sentence imposed in 2:05-cr-0243 WBS CKD P. The court will proceed on movan
Summary: ORDER CAROLYN K. DELANEY , Magistrate Judge . Movant has filed a motion seeking an extension of time to file a notice of appeal with respect to the court's August 24, 2016 order. In that order, the court found: A review of the court's docket reveals that the motion filed by movant in this action on June 15, 2016 (ECF No. 273) and pursuant to 28 U.S.C. 2255 was filed in error as movant challenges a conviction and sentence imposed in 2:05-cr-0243 WBS CKD P. The court will proceed on movant..
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ORDER
CAROLYN K. DELANEY, Magistrate Judge.
Movant has filed a motion seeking an extension of time to file a notice of appeal with respect to the court's August 24, 2016 order. In that order, the court found:
A review of the court's docket reveals that the motion filed by movant in this action on June 15, 2016 (ECF No. 273) and pursuant to 28 U.S.C. § 2255 was filed in error as movant challenges a conviction and sentence imposed in 2:05-cr-0243 WBS CKD P. The court will proceed on movant's § 2255 motion in that action.
Under Rule 4(a)(5) of the Federal Rules of Appellate Procedure, the court can extend the deadline for the filing of a notice of appeal upon a showing of excusable neglect or good cause. Movant does not argue he requires an extension due to excusable neglect. Movant has not shown good cause as any attempt to appeal the court's August 24, 2016 order would be frivolous. As indicated above, movant filed copies of the same motion in this case as well as in 2:05-cr-0243 WBS CKD P. In the motion, movant challenges only his conviction under 18 U.S.C. § 924(c)(1) for use of a firearm. That conviction was entered in in 2:05-cr-0243 WBS CKD P, not this case. Furthermore, the court's August 24, 2016 order is not appealable as it is not a final order entered on the claims presented in the § 2255 motion, (the claims will be heard in 2:05-cr-0243 WBS CKD P) and it is not an interlocutory order over which the Ninth Circuit has jurisdiction. See 28 U.S.C. §§ 1291, 1292.
Finally, movant requests the appointment of counsel. Movant already has counsel for purposes of the § 2255 motion in 2:05-cr-0243 WBS CKD P. With respect to appointing counsel for any appeal related the court's August 24, 2016 order, for reasons indicated above, that request will be denied.
Accordingly, IT IS HEREBY ORDERED that movant's October 27, 2016 request for an extension of time to file a notice of appeal and request for the appointment of counsel (ECF No. 281) are denied.
