USA v. Hernandez-Aguilar

District of Nebraska, ned-8:2005-cr-00407-36241

ORDER that defendant Alfredo Hernandez-Aguilars has 30days from the date of this order to file a certificate of appealability. Failure to do so willresult in dismissal of his appealas to defendant Alfredo Hernandez-Aguilar Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed to Defendant)

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8:05-cr-00407-JFB-FG3 Doc # 85 Filed: 09/25/08 Page 1 of 1 - Page ID # 250 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA UNITED STATES OF AMERICA,)) 8:05CR407 Plaintiff,)) v.)) ORDER ALFREDO HERNANDEZ-AGUILAR,)) Defendant.)) This matter is before the court following an order issued by the Eighth Circuit Court of Appeals wherein the Eighth Circuit has remanded the case for failure of the defendant to file a certificate of appealability pursuant to Tiedeman v. Benson, 122 F.3d 518 (8th Cir. 1997). Filing No. 84. Pursuant to Fed. R. App. P. 22(b) a person appealing a ruling under 28 U.S.C. § 2255 must file a certificate of appealability. If such request is denied by the district court, the applicant can file the request with the court of appeals. Id. "The district clerk must send the certificate or statement to the court of appeals with the notice of appeal and the file of the district-court proceedings." Id. See also 28 U.S.C. § 2253. Because no certificate of appealability was sent to the Eighth Circuit, the case has been remanded to this court. Accordingly, the defendant must file a certificate of appealability with this court and the court must rule on the same prior to permitting the appeal. THEREFORE, IT IS ORDERED that defendant Alfredo Hernandez-Aguilar's has 30 days from the date of this order to file a certificate of appealability. Failure to do so will result in dismissal of his appeal. DATED this 25th day of September, 2008. BY THE COURT: s/ Joseph F. Bataillon Chief United States District Judge