USA v. Jose Alvarez
| JOSE ARNOLDO ALVAREZ, AKA Luis Arias-Fonseca |
| UNITED STATES OF AMERICA |
| 19-15484 |
| March 18, 2019 |
| U.S. Court of Appeals, Ninth Circuit |
| Other |
Docket Report
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| Filing 5 Filed clerk order (Deputy Clerk: KMB): On April 26, 2019, this court issued an order remanding this case to the district court for the limited purpose of allowing that court to rule on appellants Federal Rule of Appellate Procedure 4(a)(6) motion to reopen time to file a notice of appeal. Appellant filed a notice of appeal on March 18, 2019. On April 26, 2019, the district court granted appellants motion to reopen time for appeal. Accordingly, this appeal shall proceed based on appellants March 18, 2019, notice of appeal. This court will rule on the request for a certificate of appealability and any pending motions in a later order. [11284013] (HC) [Entered: 05/01/2019 04:44 PM] |
| Filing 4 Filed order (DIARMUID F. O'SCANNLAIN and RONALD M. GOULD) The district court denied appellants 28 U.S.C. 2255 motion on July 2, 2018, but did not enter judgment on a separate document. See Kingsbury v. United States, 900 F.3d 1147, 1150-51 (9th Cir. 2018) (holding that Fed. R. Civ. P. 58s requirement that judgment be set out in a separate document applies to proceedings under 28 U.S.C. 2255). Accordingly, for purposes of Fed. R. App. P. 4(a), judgment was deemed entered 150 days later, on November 29, 2018. See Fed. R. App. P. 4(a)(7)(A)(ii). Although the March 18, 2019, notice of appeal was not filed or delivered to prison officials within 60 days from the date judgment was deemed entered pursuant to Fed. R. App. 4(a)(7)(A)(ii), appellants notice of appeal includes an allegation that he did not receive notice of entry of the district courts July 2, 2018, order until March 3, 2019, and the notice of appeal was filed within the jurisdictional deadline set forth in Federal Rule of Appellate Procedure 4(a)(6)(B). We construe appellants pro se notice of appeal as a motion to reopen pursuant to Federal Rule of Appellate Procedure 4(a)(6). See United States v. Withers, 638 F.3d 1055, 1061 (9th Cir. 2011). The district court has not had an opportunity to rule on that motion. Accordingly, this appeal is remanded to the district court for the limited purpose of allowing that court to rule on appellants March 18, 2019, motion to reopen the time for appeal. The district court is requested to serve a copy of its decision on this court at its earliest convenience. Briefing is stayed pending further order of the court. If the district court grants the motion to reopen the time for appeal, appellant does not need to file a new notice of appeal. The Clerk shall send a copy of this order directly to the district judge. [11278499] (HC) [Entered: 04/26/2019 10:51 AM] |
| Filing 3 Received original and 0 copies of Appellant Jose Arnoldo Alvarez 's opening brief (Informal: No) 9 pages. Served on 03/13/2019. Major deficiencies: COA pending. [11239370] (GV) [Entered: 03/22/2019 02:14 PM] |
| Filing 2 Filed Appellant Jose Arnoldo Alvarez motion for certificate of appealability. Deficiencies: None. [11239280] (NAC) [Entered: 03/22/2019 01:53 PM] |
| Filing 1 Open 9th Circuit docket: needs certificate of appealability. Date COA denied in DC: 07/02/2018. Record on appeal included: Yes. [11232868] (OC) [Entered: 03/18/2019 05:17 PM] |
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| Defendant / appellant: JOSE ARNOLDO ALVAREZ, AKA Luis Arias-Fonseca | |
| Represented By: | Jose Arnoldo Alvarez |
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| Plaintiff / appellee: UNITED STATES OF AMERICA | |
| Represented By: | Elizabeth Olson White Esquire |
| Represented By: | William Ramsey Reed |
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