US v. Philip Sebolt

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UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 15-7900 Doc: 7 Filed: 03/22/2016 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7900 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PHILIP MICHAEL SEBOLT, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 15-7900 Doc: 7 Filed: 03/22/2016 Pg: 2 of 3 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 Appeal: 15-7900 Doc: 7 33 relief. Filed: 03/22/2016 Pg: 3 of 3 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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