US v. Philip Sebolt
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:12-cr-00033-JAG-1. Copies to all parties and the district court/agency. [999779319]. Mailed to: Philip Sebolt. [15-7900]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7900
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILIP MICHAEL SEBOLT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
John A. Gibney, Jr.,
District Judge. (3:12-cr-00033-JAG-1)
Submitted:
March 17, 2016
Decided:
March 22, 2016
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Philip Michael Sebolt, Appellant Pro Se.
Thomas Kennerly
Johnstone, IV, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, Elizabeth Wu, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Philip Sebolt appeals the district court’s order denying
his motion for appointment of counsel and for an extension of
time to file a motion for a new trial, pursuant to Fed. R. Crim.
P. 33.
denial
We review for abuse of discretion the district court’s
of
a
motion
extension of time.
446
(7th
Cir.
for
appointment
of
counsel
or
for
an
See United States v. Cates, 716 F.3d 445,
2013)
(extension
of
time);
United
States
v.
Williamson, 706 F.3d 405, 418 n.11 (4th Cir. 2013) (motion under
18 U.S.C. § 3006A (2012)); Miller v. Simmons, 814 F.2d 962, 966
(4th Cir. 1987) (motion for counsel).
law de novo.
We review questions of
United States v. Westbrooks, 780 F.3d 593, 595
(4th Cir. 2015).
As
Sebolt
recognizes,
this
court
has
already
determined
that there exists no constitutional right to counsel in a postappeal Rule 33 motion.
Williamson, 706 F.3d at 415.
Insofar as
Sebolt seeks to revisit this holding, “[a] panel of this court
cannot overrule, explicitly or implicitly, the precedent set by
a prior panel of this court.”
United States v. Rivers, 595 F.3d
558, 564 n.3 (4th Cir. 2010) (internal quotation marks omitted).
The exculpatory evidence Sebolt seeks is, at this juncture,
purely
speculative.
evidence,
and
despite
Even
his
assuming
arguments
he
to
could
the
obtain
contrary,
such
Sebolt
could not demonstrate the diligence required for granting Rule
2
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33 relief.
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See United States v. Moore, 709 F.3d 287, 292 (4th
Cir. 2013) (citing United States v. Chavis, 880 F.2d 788, 793
(4th Cir. 1989)) (discussing test).
Because the district court
was not required to authorize Sebolt’s fishing expedition, we
discern
no
abuse
of
discretion
in
the
district
court’s
discretionary denial of counsel or an extension of time to file
a Rule 33 motion.
Cir
1984)
See Whisenant v. Yuam, 739 F.2d 160, 163 (4th
(discussing
discretionary
exceptional
appointment
of
circumstances
counsel),
abrogated
warranting
on
other
grounds by Mallard v. U.S. Dist. Ct., 490 U.S. 296 (1989).
Accordingly, we affirm the district court’s judgment.
dispense
with
contentions
are
oral
argument
adequately
because
presented
in
the
the
facts
We
and
legal
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
3
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