United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
there are five pending motions in this case: Docs. 1370,
1371, 1372, 1373, and 1374. Defendant Anthony Thompson filed
all five of them. But before it can reach any of these
motions, the court must determine whether it has jurisdiction
to decide them.
threshold question arose when Mr. Thompson filed a Notice of
Appeal shortly after he filed his five motions.
Compare Doc. 1376 (Notice of Appeal filed August 8,
2019) with Docs. 1370-74 (defendant's pro se
motions, filed August 5 and 7, 2019). By filing his Notice of
Appeal, Mr. Thompson created uncertainty about this
court's jurisdiction to decide his motions. See,
e.g., United States v. Jackson, 950 F.2d
633, 636 (10th Cir. 1991) (“[T]he district court and
the court of appeals do not exercise jurisdiction over the
same action at the same time.” (citing United
States v. Green, 847 F. 622, 624 (10th Cir. 1988))).
in Part I of this Order, the court analyzes this threshold
question. Concluding that it has jurisdiction over Mr.
Thompson's motion to reconsider, Part II addresses all
five of the pending pro se motions.
Does this court have jurisdiction to decide Mr.
Thompson's motion to reconsider?
court convened a hearing on August 15, 2019, to raise the
jurisdictional concern with the parties. During the hearing,
the court directed the United States to file a brief
addressing this issue no later than August 29, 2019.
See Doc. 1380, 1381. After a short extension, Doc.
1389, the government filed its brief on September 19, 2019.
See Doc. 1390. It reported the following: “The
parties agree that while Federal Rule of Appellate Procedure
4(b)(1)(A) does not specifically list a motion to reconsider
as tolling [the] time to file a notice of appeal, the Tenth
Circuit has established that this Court retains jurisdiction
to rule on Mr. Thompson's motions to reconsider.”
Id. at 1 (citing Jackson, 950 F.2d at 636).
Mr. Thompson's counsel has confirmed that defendant agrees
with the government's jurisdictional position. Doc. 1392.
And after reviewing Jackson, the court reaches the
same conclusion as the parties. Mr. Thompson's Notice of
Appeal does not deprive the court of jurisdiction to decide
his motion to reconsider.
United States v. Jackson, the Circuit encountered a
situation like the one Mr. Thompson has created here. The
Jackson defendant pleaded guilty, then moved to
withdraw his plea. The court denied the motion to withdraw
plea and defendant filed a motion asking the court to
reconsider that decision. While that motion was pending,
defendant filed a Notice of Appeal. About two months after
the defendant's notice of appeal, the district court
denied defendant's reconsideration motion. The defendant
did not file an additional Notice of Appeal. 950 F.2d at 634.
appeal, the government claimed that the Circuit lacked
jurisdiction to consider the merits of defendant's
appeal. Id. The government argued that
defendant's notice of appeal was premature. After close
analysis of Fed. R. App. P. 4(b), the Circuit disagreed. It
reasoned, “[A] criminal defendant should not lose his
right to appeal because of an ambiguous rule.”
Id. at 635. Instead, the Circuit held, “[W]hen
a defendant files a motion that tolls the time for appeal,
the motion holds the notice of appeal in abeyance and the
notice becomes effective upon the disposition of the
motion.” Id. Also, Jackson held, the
defendant's motion to reconsider-if not a successive
motion to reconsider-qualified as a motion that “tolled
the time for appeal.” Id. (citing United
States v. Dieter, 429 U.S. 6 (1976)). Finally,
Jackson ruled, the defendant's “notice of
appeal became effective after the district court ruled on
[the defendant's] motion, ” id., thus
conferring jurisdiction on the Circuit to consider his
the parties' report and Jackson's holding,
the court concludes that it has jurisdiction to decide Mr.
Thompson's motion to reconsider.
Mr. Thompson's Motions
Thompson has filed a total of five motions. The court now
turns to those motions.
Doc. 1370 reports that Mr. Thompson “does not believe
he can handle filings [in] his direct appeal” pro se.
Id. At the August 15 hearing, the court inquired of
Mr. Thompson who, at the time of that hearing, was still
representing himself. The defendant confirmed that he wished
to revoke his decision to represent himself and so, the court
appointed the Office of the Federal Public Defender to
represent him. Doc. 1382. Two members of that office now have
entered appearances on the defendant's behalf. Docs. 1383
& 1384. Also, Mr. Thompson's new attorneys explicitly
have confirmed that they plan to enter their appearances as
his appellate counsel once the proceedings before this court
have concluded. Doc. 1392. So, the portion of Doc. 1370
asking for appointed counsel is moot.
motion also asks, “[i]n the alternative, ” for
the court to stay proceedings in Mr. Thompson's case
until his co-defendant, Albert Banks, is resentenced.
Id. at 2. One could read this phrasing to render
this request for relief moot since the court has granted the
motion's primary request. But if it's not moot, the
court denies this portion of the motion.
Mr. Thompson suggests, will permit the court to determine
“whether there is a disparity which may have the
potential to affect the application of the factors under 18
U.S.C. 3353(a)(6)” before his “prior
sentencing.” Id. at 1. Rule 2 of the Federal
Rules of Criminal Procedure mandates that federal courts
interpret those rules “to provide for the just
determination of every criminal proceeding, to secure
simplicity in procedure and fairness in administration, and
to eliminate unjustifiable expense and delay.” The
Indictment against Mr. Thompson is more than six years old.
It has been to the Circuit twice, to the Supreme Court once,
and now is back before this court. Undoubtedly, more appeals
will follow. The court declines to add to the case's long
lifespan. The court plans to ...