Government’s refusal to file appellate brief was unwarranted in appeal of post-conviction challenge to indictment
COLLATERAL REVIEW United States v. Valadez-Camarena, No. 04-2113, ___ F.3d ___(10th Cir. Apr. 5, 2005)(New Mexico). Appeal of district court’s order denying defendant’s post-conviction "motion for validation of indictment." HELD: District court properly denied defendant’s post-conviction motion challenging validity of indictment and properly refused to construe defendant’s "motion for validation of indictment" as motion to vacate sentence or conviction under 28 U.S.C. § 2255. However, government’s refusal to file brief absent issuance of certificate of appealability was unwarranted as appeal did not involve motion under § 2255 and therefore did not implicate certificate of appealability requirement of 28 U.S.C. § 2253(c)(1)(B). Read the opinion here. |
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