Opinion
CV-20-00521-TUC-CKJ
02-28-2024
Jesus Eder Moreno Ornelas, Petitioner, v. United States of America, Respondent.
ORDER
On January 3, 2023, the Court denied Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (28 U.S.C. § 2255) and entered Judgment. (Order (Doc. 24); Judgment (Doc. 25)). On February 15, 2024, the Petitioner filed a Motion to File Notice of Appeal Out of Time. (Doc. 26.) He alleges that he “only recently” obtained a copy of the Court's Order and Judgment. Id. at 2l. The Court's Order denying him relief also declined to issue a certificate of appealability, pursuant to Rule 11(a) governing Section 2254 cases. (Order (Doc. 24) at 7.) As Petitioner points out, he filed this case pursuant to 28 U.S.C. § 2255 and the citation in the Order to § 2254 was error. The error was harmless, however, because Fed. R. App. P. 11 applies to filing a Notice of Appeal equally to all appeals. Likewise, requirements for issuing a certificates of appealability are the same without regard to whether a Petitioner proceeds under § 2254 or § 2255. The Court cannot consider the merit to his claim that he only recently obtained a copy of the Court's Order and Judgment without knowing what Petitioner means by “recently.” He was represented in this case by counsel, Frederick Michael Carrillo. Therefore, the Court requests that counsel file proof of when he provided Petitioner with a copy of the Order (Doc. 24) and Judgment (Doc. 25). Subsequently, the Court will determine whether to grant reconsideration of its decision to not issue a certificate of appealability and whether to grant the request for leave to file a late appeal.
Accordingly,
IT IS ORDERED that the Clerk of the Court shall send a copy of this Order to counsel, Frederick Michael Carrillo.
IT IS FURTHER ORDERED that within 14 days of the filing date of this Order, attorney Carrillo shall file a Notice and proof of the date he sent a copy of the Court's Order (Doc. 24) and Judgment (Doc. 25) to the Petitioner.