Out with the Old, In with the New (Rules): 10th Circuit Rules Changes and Forms Effective Jan. 1, 2008
The new rules (available here on the Tenth Circuit's website)don't change much, but be sure to download the new version of the docketing statement.
The most significant change is something that affects the government. New Rule 27 explicitly discusses the government's motion to enforce an appeal waiver. Rule 27.2(A)(3)(b) states such a motion "must be filed" within 20 days of the notice that the record is complete or the notice of transmittal of the record, [instead of 15 days after the notice of appeal is filed]. But, then it says failure to file a timely motion does not preclude raising the issue in a merits brief. The change in the rule suggests the requirement that good cause be shown for a late filing does not apply to motions to enforce appeal waivers. Keep in mind, though, the Le case discussed above, where the 10th chose to address possibly waived issues, because the government hadn't raised the waiver question until its answer brief. The rule also requires the government to attach to its motion copies of the plea agreement and the transcripts of both the plea and sentencing hearings.
New Rule 41.2 now provides that the clerk will not accept a motion to recall the mandate filed more than a year after the mandate was issued unless the motion states with specificity why it wasn't filed sooner. The rule states the motion will not be granted unless the party has established good cause for the delay in filing the motion.
Throughout, the new rules refer to the e-submission rules. Rule 31.5 is now unclear to me about whether defendants have to serve the AUSA. The e-submission rules seem to say service can be solely by e-mail. See page 6, Section C. But, the new Rule 31.5 says "a party must serve a single copy of all filings on ... all counsel ...." Does "single copy" include serving by e-mail alone?
The most significant change is something that affects the government. New Rule 27 explicitly discusses the government's motion to enforce an appeal waiver. Rule 27.2(A)(3)(b) states such a motion "must be filed" within 20 days of the notice that the record is complete or the notice of transmittal of the record, [instead of 15 days after the notice of appeal is filed]. But, then it says failure to file a timely motion does not preclude raising the issue in a merits brief. The change in the rule suggests the requirement that good cause be shown for a late filing does not apply to motions to enforce appeal waivers. Keep in mind, though, the Le case discussed above, where the 10th chose to address possibly waived issues, because the government hadn't raised the waiver question until its answer brief. The rule also requires the government to attach to its motion copies of the plea agreement and the transcripts of both the plea and sentencing hearings.
New Rule 41.2 now provides that the clerk will not accept a motion to recall the mandate filed more than a year after the mandate was issued unless the motion states with specificity why it wasn't filed sooner. The rule states the motion will not be granted unless the party has established good cause for the delay in filing the motion.
Throughout, the new rules refer to the e-submission rules. Rule 31.5 is now unclear to me about whether defendants have to serve the AUSA. The e-submission rules seem to say service can be solely by e-mail. See page 6, Section C. But, the new Rule 31.5 says "a party must serve a single copy of all filings on ... all counsel ...." Does "single copy" include serving by e-mail alone?
posted by Anonymous at 9:40 AM
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