Opinion
No. CR 90-233-PHX-RCB.
May 19, 2010
ORDER
Currently there are four motions pending before the court. Three were filed by defendant Daniel Morales, appearing pro se, and the fourth was filed by his recently court-appointed attorney, Michael S. Ryan. In his pro se capacity, defendant Morales filed a motion "request[ing] . . . aKastigar hearing" (doc. 867). The government filed its response (doc. 870) and Morales filed a reply (doc. 871). Thereafter, Morales filed two separate "Motion[s] for Status" regarding his request for a Kastigar hearing (doc. 874 and 881). One of those status motions (doc. 874) was filed prior to attorney Ryan's appointment as counsel for defendant Morales (doc. 878); the other was filed after that appointment (doc. 881).
On April 20, 2010, attorney Ryan filed a motion to "withdraw document #881" — defendant Morales' second motion for status — based upon Morales' "misunderstanding" that because now he is represented by counsel, Morales no longer has pro se status. Mot. (doc. 882) at 1:17. In seeking to withdraw that motion, attorney Ryan explains that he only "recently . . . underst[ood] Mr. Morales' Kastigar claims, and he "is currently obtaining transcripts of previous proceedings to investigate Mr. Morales' contentions." Id. at 1:26-28 — 2:1. The Government has not filed a response to this motion to withdraw, and the time to do so has passed.See LRCiv 7.2(c) (opposing party has 14 days after service to serve and file a responsive memorandum).
In accordance with LRCiv 7.2(i), the court deems the Government's failure to respond as consent to the granting of attorney Ryan's "Motion to Withdraw Document #881[.]" Mot. (doc. 882) (emphasis omitted). Accordingly, the court GRANTS that motion.
Given that defendant Morales is now represented by counsel, who declares that he is investigating Morales' contention that he is entitled to a Kastigar hearing, the court sua sponte DENIES, without prejudice to renew, defendant Morales' motion requesting a Kastigar hearing (doc. 867). Because that ruling renders moot defendant Morales' first "Motion for Status" (doc. 874), the court DENIES that motion as well.
As set forth above, the court hereby ORDERS that:
(1) the "Motion for a Kastigar Hearing" by Daniel Morales (doc. 867) is DENIED without prejudice to renew;
(2) the "Motion for Status" by Daniel Morales (doc. 874) is DENIED as moot;
(3) the "First Motion to Withdraw Document #881" is GRANTED.