Opinion
ANTHONY P. CAPOZZI, LAW OFFICES OF ANTHONY P. CAPOZZI, FRESNO, CALIFORNIA, ATTORNEY FOR Defendant, JOSEPH CUELLAR.
REQUEST FOR STAY OF SURRENDER DATE PENDING RESOLUTION OF APPELLATE COURT RULING; ORDER DENYING SAME
LAWRENCE J. O'NEILL, District Judge.
Defendant Joseph Cuellar, requests an Order Staying the Surrender Date of April 15, 2015, pending the resolution of the decision of the Ninth Circuit Court of Appeals concerning Mr. Cuellar's Motion for Release Pending Appeal. Said request is based upon the Points and Authorities herein and the Declaration of Anthony P. Capozzi.
Circuit Rule 9-1.2(e) Release Pending Appeal states:
If the appellant is on bail at the time the motion is filed in this Court, that bail will remain in effect until the Court rules on the motion. (Rev. 1/1/01 - changed from (d) to (e))
In United States v. Fuentes, 946 F.2d 621, 622 (9th Cir. 1991) the court followed the dictate of Circuit Rule 9-1.2:
Ninth Circuit Rule 9.1-2(d) provides, "if the appellant is on bail at the time the motion is filed in this court, that bail will remain in effect until the court rules on the motion." The intent of this rule is to provide for an automatic stay of an appellant's surrender date if he or she is on bail at the time the motion for bail pending appeal is filed in this court. The appellant in this case filed a motion for a stay pursuant to Ninth Cir. R. 9-1.2(d). The operation of the rule, however, is automatic and provides an appellant, who is still released whether on bond or on his or her own recognizance, with an automatic stay of surrender upon the filing in this court of a motion for bail pending appeal.
Accordingly, appellant's motion to stay his surrender pending a decision on his motion for bail pending appeal is granted. Appellant's surrender scheduled for August 17, 1991, is stayed pending final decision on appellant's motion for bail pending appeal.
DECLARATION OF ANTHONY P. CAPOZZI
I, ANTHONY P. CAPOZZI, DECLARE:
1. This attorney represents Mr. Cuellar in the appeal of his Motion to Withdraw his Plea.
2. A Notice of appeal was filed in this case on March 10, 2015. (Exhibit A)
3. Defendant's Motion for Release on Appeal was denied on April 13, 2015. (Exhibit B - Minute Order, Exhibit C - Transcript)
4. On April 14, 2015, this attorney filed a Motion for Release Pending Appeal in United States v. Joseph Cuellar, Court of Appeals case number 15-10110. (Exhibit D - Page 1)
5. Based upon Circuit Rule 9-1.2 and the decision in United States v. Fuentes, 946 F.2d 621, 622 (9th Cir. 1991) it is respectfully requested that Mr. Cuellar's surrender date of April 15, 2015, be stayed pending the resolution of Mr. Cuellar's motion in the Court of Appeals.
I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct.
ORDER
The motion is DENIED. The issue of custody is now in the hands of the Ninth Circuit.
IT IS SO ORDERED.