United States v. Stephenson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-30530 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OBADIAH STEPHENSON, Sr.,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 91-CR-0113 - - - - - - - - - - April 25, 1997 Before JONES, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:*

Obadiah Stephenson, prisoner # 22252-034, appeals the

district court’s dismissal of his motion for new trial following

remand by this court directing the district court to accept

supporting affidavits on the motion. The scope of this court’s

review following remand is limited to determining “whether the

court below reached its final decree in due pursuance of [this

court’s] previous opinion and mandate.” Burroughs v. FFP

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-30530 - 2 -

Operating Partners, 70 F.3d 31, 33 (5th Cir. 1996). The district

court has “both specific and inherent power to control its

docket, and this includes the power to dismiss a case . . . as a

sanction for a party's failure to obey court orders." In re

United Markets Int'l, Inc., 24 F.3d 650, 654 (5th Cir.), cert.

denied, 115 S. Ct. 356 (1994). The district court ordered

Stephenson to file supporting affidavits to his motion for new

trial, granted him numerous extensions to file such affidavits,

and appointed him two different attorneys to assist him in

obtaining the affidavits. Stephenson refused the assistance of

both attorneys. The district court admonished Stephenson that

the failure to file the affidavits would result in its dismissal

of his motion. Stephenson failed to comply with the district

court’s order. The district court’s action in dismissing

Stephenson’s motion for new trial was not an abuse of discretion.

The district court did not err by denying Stephenson’s

motion filed under Federal Rule of Criminal Procedure 34 as

untimely because the motion was filed more than four years after

entry of the judgment challenged and the record does not show

that the trial court allowed additional time during which

Stephenson was allowed to file a Rule 34 motion. See Fed. R.

Crim. Proc. 34.

Stephenson’s motion for review of the district court’s

denial of his motion for release on bail pending appeal is DENIED

as moot. No. 96-30530 - 3 -

AFFIRMED. MOTION DENIED.