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

Case 1:04-cr-00417-LTB

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Filed 08/01/2008

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 04-cr-00417-LTB UNITED STATES OF AMERICA, Plaintiff, v. CLEMMETH D. NEVELS, Defendant.

PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO FILE RESPONSE TO MOTION TO VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255

Plaintiff the United States, through its counsel of record, hereby moves pursuant to Rule 6(b)(1)(A) of the Federal Rules of Civil Procedure for a 21-day extension of time, until Monday, August 25, 2008, to file its response to defendant Clemmeth D. Nevels' Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255. In support of this request, plaintiff states as follows: 1. Mr. Nevels filed on June 26, 2008, his Motion to Vacate Sentence Pursuant

to 28 U.S.C. § 2255. See Doc. 188. 2. On July 3, 2008, this Court ordered that the Government file a response on

or before August 4, 2008. See Doc. 191. 1

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3.

Plaintiff's undersigned counsel was assigned the case very soon after the

issuance of this Court's July 3, 2008 Order. He immediately asked that Mr. Nevels' criminal case file be retrieved from the "closed files" file room at the U.S. Attorney's Office, and that all pleadings and transcripts of hearings in the case ­ including the transcript of the four-day jury trial and the transcript of the sentencing hearing ­ be located and assembled in the file. 4. It has taken a number of weeks to obtain all of this material. The trial

transcripts and the sentencing transcript were not in Mr. Nevels' criminal case file, and had to be re-ordered from the court reporter. Those transcripts were not finally obtained until Friday, August 1, 2008. 5. Mr. Nevels alleges in his 2255 motion that his counsel provided ineffective

assistance at Mr. Nevels' trial. See Doc. 188 at 4-8. He also alleges that his sentence was in violation of U.S. Sentencing Guidelines. Id. at 6-7. 6. Undersigned counsel for the Government has not been able to prepare the

Government's response to Mr. Nevels' 2255 motion without the trial transcripts and the sentencing transcript. Consequently, this requested 21-day extension of time is necessary to allow undersigned counsel to draft and file the Government's response to the 2255 motion. 7. Pursuant to D.C.COLO.LCivR 7.1(A), undersigned counsel states that Mr.

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Nevels is incarcerated and therefore that he has been unable to confer with Mr. Nevels regarding this motion. 8. Pursuant to D.C.COLO.LCivR 6.1(C), undersigned counsel states that no

previous motion has been filed to extend the date for the Government to file its 2255 response. 9. Pursuant to D.C.COLO.LCivR 6.1(D), undersigned counsel certifies that a

copy of this motion will be served on Mr. Nevels. WHEREFORE, plaintiff the United States respectfully requests that it be granted a 21-day extension of time, until Monday, August 25, 2008, to file its response to defendant Clemmeth D. Nevels' Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255. DATED: This 1st day of August, 2008. Respectfully submitted, TROY A. EID United States Attorney s/ Michael C, Johnson Michael C. Johnson Assistant United States Attorney United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 (303) 454-0134 FAX: (303) 454-0461 E-mail: [email protected] Attorneys for Plaintiff

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on August 1, 2008, I electronically filed the foregoing with the Clerk of Court using the ECF system. I also hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant by U.S. mail:

Clemmeth D. Nevels Fed. No. 33192-013 U.S.P. Allenwood P.O. Box 3000 White Deer, Pennsylvania 17887

s/ Michael C. Johnson Michael C. Johnson Attorney for Defendant United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0134 FAX: (303) 454-0408 E-mail: [email protected]

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