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United States, 266 F.2d 88, 91 (10th Cir. 1959), Vacated On Other Grounds, 364 U.S. 282 (1960)

The court received a pro se notice of appeal from the defendant regarding rulings from a July 28, 2010 hearing. However, the court certified the appeal as frivolous for two reasons: 1) The order being appealed was not an immediately appealable final order. 2) The defendant filed the notice of appeal pro se even though he was represented by competent counsel. As a result, the court determined it did not lose jurisdiction and would not stay any proceedings during the pendency of the invalid appeal.

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78 views2 pages

United States, 266 F.2d 88, 91 (10th Cir. 1959), Vacated On Other Grounds, 364 U.S. 282 (1960)

The court received a pro se notice of appeal from the defendant regarding rulings from a July 28, 2010 hearing. However, the court certified the appeal as frivolous for two reasons: 1) The order being appealed was not an immediately appealable final order. 2) The defendant filed the notice of appeal pro se even though he was represented by competent counsel. As a result, the court determined it did not lose jurisdiction and would not stay any proceedings during the pendency of the invalid appeal.

Uploaded by

Jones, Walker
Copyright
© Attribution Non-Commercial (BY-NC)
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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Case 2:07-cr-20073-CM Document 237 Filed 08/12/10 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA, )


)
Plaintiff, )
)
v. ) Case No. 07-20073-01-01-CM
) 07-20124-01-02-CM
GUY M. NEIGHBORS, ) 08-20105-01-01-CM
)
Defendant. )
)

ORDER CERTIFYING APPEAL AS FRIVOLOUS

The court notes that defendant has filed a pro se notice of appeal (Doc. 225 in Case Co. 07-

20073; Doc. 328 in Case No. 07-20124; and Doc. 178 in Case No. 08-20105).1 Defendant appeals

the court’s rulings in a hearing held July 28, 2010. Under normal circumstances, “the filing of a

timely notice of appeal from an appealable order divests the trial court of jurisdiction and confers

jurisdiction on the court of appeals.” United States v. Mavrokordatos, 933 F.2d 843, 846 (10th Cir.

1991). But that rule “presupposes that there is a valid appeal from an appealable order.” Euziere v.

United States, 266 F.2d 88, 91 (10th Cir. 1959), vacated on other grounds, 364 U.S. 282 (1960).

When an order is not appealable, an attempt to appeal that order is just that – an attempt. Id. “It is a

nullity and does not invest the appellate court with jurisdiction, and consequently does not divest the

trial court of its jurisdiction.” Id. (citations omitted). The district court may also ignore the notice of

appeal if it is deficient for the following reasons: (1) untimeliness; (2) lack of essential recitals; (3)

reference to a non-appealable order; or (4) it otherwise is clearly invalid. Arthur Anderson & Co. v.

1
Although the notice of appeal appears to have been signed by Guy Neighbors, one
certificate of service attached to the documents is signed by Carrie Neighbors. Mrs. Neighbors, a
pro se litigant in her own criminal cases, is not an attorney and may not represent Mr. Neighbors.
Mr. Neighbors is represented by counsel.
Case 2:07-cr-20073-CM Document 237 Filed 08/12/10 Page 2 of 2

Finesilver, 546 F.2d 338, 340 (10th Cir. 1976).

The court disregards defendant’s pro se notice of appeal for two reasons. First, the order that

defendant appeals is not an immediately appealable final order. Second, defendant filed the notice

pro se although he is represented by competent counsel. His notice of appeal is out of order. See

United States v. Guadalupe, 979 F.2d 790, 795 (10th Cir. 1992).

For these reasons, the court will not stay any proceedings that may arise before this court

during the pendency of the appeal.

IT IS SO ORDERED.

Dated this 12th day of August, 2010 at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

-2-

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