U.S. v. McCalister, No. 09-5101 (4/16/10) (Published) - An unsuccessful applicant under 18 USC § 3582(c)(2) (retroactive guidelines amendment sentence reduction) cannot file a Rule 60(b) motion to set aside the judgment. Civil rules do not apply to § 3582(c)(2) proceedings which are strictly criminal proceedings.

U.S. v. Escobedo, No. 08-2019 (4/16/10) (unpub'd) - The 10th rejects the government's argument that the defendant's failure to object to a § 2L1.2 16-level enhancement constituted a waiver of an appellate challenge to that enhancement. Waiver would have occurred only if defense counsel was aware of the basis for challenging the enhancement and decided not to pursue it. So plain error review applies. If there was any error in enhancing for a California kidnapping conviction, it was not obvious enough to be plain. Sentence affirmed.

U.S. v. Gutierrez-Vasquez, No. 09-2203 (4/16/10) (unpub'd) - The 10th rejects the defendant's pro se argument that his plea was involuntary on the grounds that neither counsel nor the defendant provided a transcript of the plea hearing for the appellate record. There was no transcript because counsel filed an Anders brief and sought to withdraw.

Banks v. Trani, No. 10-1043 (4/16/10) (unpub'd) - Habeas petitioner files a motion for appointment of counsel to help him pursue a state habeas petition soon after the state S. Ct. affirms his conviction. The state court promptly appoints counsel. Two years later counsel withdraws saying counsel found no good issues. The petitioner pursues his own state petition and then goes to federal court. He is time-barred because the request for appointment of counsel did not toll the statute of limitations. Counsel's indisputable negligence is not enough to equitably toll the time.