Cullinane v. USA

• Court: District Court, D. New Hampshire
• Decided: April 7, 1997
• Docket: CV-96-351-SD
• Status: Published

Opinion

Cullinane v. USA CV-96-351-SD 04/07/97

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Kevin Cullinane

v. Civil No. 96-351-SD

United States of America

O R D E R

This action is pending appeal.1 The movant, Kevin Culli­

nane, perceives that his appeal might somehow be strengthened by

now moving to arrest judgment in reliance on Rule 60(b) (4), Fed.

R. Civ. P.,2 and Rule 32(c)(5), Fed. R. Crim. P.3

The thrust of the pleadings currently before the court is to

1The rule in this circuit is that when an appeal is pending the trial court can deny a motion of the type here presented or, if it finds the motion to have merit, it can seek remand from the court of appeals. Commonwealth of Puerto Rico v. § Zoe Colocotroni, 601 F.2d 39, 42 (1st Cir. 1979), cert, denied, 450 U.S. 912 (1981) .

2Rule 60(b) (4) provides for relief from a void judgment.

3Rule 32 (c) (5) mandates that a court advise a defendant of his right to appeal on resentencing. It is the current counter­ part of what was formerly Rule 32(a) (2) . the effect that, although his right to appeal therefrom has not

been hindered, the failure of this court to include in its order

of January 14, 1997, plaintiff's right to appeal therefrom

reguires further revision of these collateral proceedings. The

court disagrees.

As of this writing, this circuit has in effect a bright-line

rule that reguires the district court to advise a defendant of

his right to appeal his criminal sentence. United States v.

Benthien, 434 F.2d 1031 (1st Cir. 1970) . This rule is not

applicable, however, when an appeal has been duly entered.

Johnson v. Norton, 435 F.2d 842 (1st Cir. 1970).4

The instant case falls within the parameters of Johnson

rather than Benthien. Accordingly, the court denies the motion,

but transmits same with the accompanying memos and documents to

the Clerk of the United States Court of Appeals for the First

Circuit. The movant should move promptly to consolidate these

4The court expresses no opinion whether, in light of the intervening decision in United States v. Timmreck, 441 U.S. 780 (1979), the First Circuit might, as has the Seventh Circuit, Tress v. United States, 87 F.3d 188 (1996), now conclude that it no longer is necessary to apply the bright-line rule of Benthien in cases such as the one now before this court.

2 documents with the documents currently on file in his present

appeal.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

April 7, 1997 cc: Kevin Cullinane, pro se United States Attorney