Free Order on Motion for Extension of Time - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America,

) ) Plaintiff, ) ) v. ) ) ) Rafael Cruz-Ayon, ) ) Defendant. _________________________________ )

No. CR 03-1096-PHX-SMM CV 05-2576-PHX-SMM (BPV) ORDER

Pending before the Court is Defendant's Motion for Extension of Time to File a Notice of Appeal. (Dkt. 62.) Pursuant to Federal Rule of Appellate Procedure 4(a)(5), Defendant requests that the Court grant him an extension of time to file his Notice of Appeal from this Court's October 24, 2006 Order. See Dkt. 60. Defendant's Motion for an Extension of Time to File Notice of Appeal must be denied, because the time to file a notice of appeal from the Court's October 24, 2006 Order has not yet begun to run. The Court's October 24, 2006 Order is not "final"for purposes of appeal because it only denies two of Defendant's three claims and requires an evidentiary hearing on the third claim. (Dkt. 60.) Because the October 24, 2006 Order is not "final," the Court purposefully did not require the Clerk of Court to enter "judgment" under Fed.R.Civ.P. 58, and the Clerk has not in fact entered judgment. The time for filing a notice of appeal does not begin to run until judgment is entered in compliance with Rule 58 and Rule 79(a) of the Federal Rules of Civil Procedure. See Vernon v. Heckler, 811 F.2d 1274, 1276 (9th Cir. 1987) ("A judgment or order
Case 2:03-cr-01096-SMM Document 65 Filed 11/14/2006 Page 1 of 2

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is not entered within the meaning of [Federal Rule of Appellate Procedure] Rule 4(a) unless it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure. . . . Absent compliance with these requirements a party will not ordinarily be found to have exceeded any of the time periods set forth in Fed. R.App. P. 4(a)".) (citations and quotations omitted). This Court will not enter a final order on Defendant's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, nor require the Clerk to enter a final judgment under Rule 58, until the conclusion of Defendant's evidentiary hearing. Thus, Defendant's Motion for Extension of Time to File a Notice of Appeal must be denied as premature. IT IS HEREBY ORDERED DENYING WITHOUT PREJUDICE Defendant's Motion for Extension of Time to File a Notice of Appeal. (Dkt. 62.) DATED this 13th day of November, 2006.

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