Free Motion for Extension of Time to File - District Court of Colorado - Colorado

Case 1:04-cr-00417-LTB

Document 58

Filed 12/15/2005

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UNITED STATES DISTRICT COURT DISTRICT OF COLORADO

Criminal Case No. 04-CR-417-B UNITED STATES OF AMERICA, Plaintiff, vs. CLEMMETH NEVELS Defendant. _______________________________________________________________________ DEFENSE MOTION FOR ENLARGEMENT OF TIME TO FILE ADDITIONAL MOTIONS ________________________________________________________________________ Defendant Clemmeth Nevels, moves this Court for an Order permitting Mr. Nevels to file additional motions beyond the previously established deadline set by the Court. The grounds for this Motion are as follows: 1. A previous motions hearing was held on October 14, 2005. This motions

hearing did not require testimony and only involved legal arguments. 2. On this date, the Court scheduled a status hearing for December 22, 2005;

a trial readiness conference on February 10, 2006 and a ten-day jury trial beginning March 6, 2006. 3. The Court has previously declared this case to be complex given the

voluminous discovery, the factual circumstances surrounding this alleged crime and issues involving Mr. Nevels' possible status as an armed career criminal. 4. Although a motions hearing was previously held, defense investigation has Since the motions hearing, counsel has become aware of information

been on-going.

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which may warrant the filing of additional motions. However, counsel is awaiting the preparation of transcripts from motions hearings in the state homicide case. Counsel was under the mistaken assumption that the Colorado State Public Defender's Office was in possession of these transcripts, when in fact these transcripts had never been ordered by Mr. Nevels' previous counsel. Testimony of witnesses from the motions hearing may warrant the filing of an evidentiary motion on behalf of Mr. Nevels' pertaining to the constitutionality of his detention and statements he made to law enforcement. However, at this point, counsel is unable to assess this without reviewing the prior testimony. Transcripts have been ordered from the state proceeding but have not yet been received. It is anticipated that these transcripts will be prepared no later than December 23, 2005. 5. In addition, based on representations by the government that they may

utilize a ballistics/firearms expert, the defense has been consulting with its own independent expert as well. Issues have come to counsel's attention regarding the

physical evidence which counsel feels warrants the filing of another non-evidentiary motion. 6. The government will not be prejudiced in permitting defense counsel to

file additional motions. The jury trial is not scheduled until March 6, 2006 and there seems to be ample time to schedule a motions hearing without the necessity of rescheduling the trial date. On the other hand, Mr. Nevels would be prejudiced should the Court deny counsel's request to file additional motions. Mr. Nevels has a

constitutional right to a fair trial and a right to present a defense to these charges. Counsel feels Mr. Nevels would be deprived of these rights should counsel not be permitted to challenge legal and factual issues which could affect the outcome of his trial.

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Further, Mr. Nevels' has right to effective assistance of counsel. The right to counsel guaranteed by the Sixth Amendment to the United States Constitution entitles Mr. Nevels to reasonably effective assistance of an attorney acting as his diligent and conscientious advocate. Strickland v. Washington, 466 U.S. 668 (1984). It is counsel's assessment that Mr. Nevels would be denied effective assistance of counsel should counsel not be permitted to file additional motions on his behalf, as counsel's failure to file motions in a timely matter could be construed as ineffective assistance of counsel in a future proceeding. Based on the foregoing, counsel requests the Court grant an enlargement of time until Monday January 30, 2006 to file additional motions

DATED this ______ day of December, 2005

Respectfully submitted,

________________________ DANA M. CASPER, #21149 Attorney for Defendant 600 S. Cherry Street, Suite 305 Denver, CO. 80246 (303) 321-5850

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on December ___, 2005 a true and correct copy of the foregoing was filed with the Clerk by facsimile and was served by facsimile to: AUSA Josh Stein United States Attorney's Office Facsimile Number: (303) 454-0402

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