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United States v. McClinton

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


November 12, 2008

UNITED STATES, PLAINTIFF,
v.
KEISER MCCLINTON, DEFENDANT.

The opinion of the court was delivered by: William J. Martini, U.S.D.J.

ORDER

THIS MATTER comes before the court on Defendant's motion for leave to file an appeal out-of-time; and the Fed. R. App. P. 4(b) stating that a defendant's notice of appeal must be filed within ten days of the entry of the judgment being appealed; and the District Court only being permitted to extend the time to file a notice of appeal up to thirty days upon a finding of excusable neglect or good cause; and judgment having been entered against Defendant on November 16, 2007; and Defendant having filed the motion for leave to appeal out-of-time on September 18, 2008; and the motion having been filed almost ten months after the entry of judgment; and the entry of this order coming days before the deadline for Defendant to file a petition under 28 U.S.C. § 2255; and for good cause appearing;

IT IS on this 12th day of November 2008, hereby

ORDERED that Defendant's motion for leave to file an appeal out-of-time is DENIED; and it is

FURTHER ORDERED that the deadline for Defendant to file a petition for relief under 28 U.S.C. § 2255, if any, is hereby extended to December 16, 2008; and it is

FURTHER ORDERED that, pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999), Defendant is advised that a petition under 28 U.S.C § 2255 must be all-inclusive, since once he files a §2255 petition, he will lose his ability to file a second or successive pleading absent Certification by the Court of Appeals.

20081112

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