Opinion
21-8023
07-08-2021
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HOLLI TELFORD LUNDAHL, Defendant-Appellant.
D.C. No. 1:20-CR-00048-NDF-1 (D. Wyo.)
Before TYMKOVICH, Chief Judge, HARTZ, and CARSON, Circuit Judges.
ORDER
Appellant Holli Telford Lundahl filed a pro se notice of her intent to appeal Magistrate Judge Kelly H. Rankin's order that she be detained pending sentencing. [See ECF No. 246]. Ms. Lundahl has been convicted, but not sentenced in the underlying district court action. Pursuant to Fed. R. App. P. 46.3(A), Ms. Lundahl's court-appointed counsel, Terry Harris, entered an appearance on Ms. Lundahl's behalf to perfect the appeal.
Upon opening of the appeal, this court entered a show cause order, directing Mr. Harris—on or before June 2, 2021—to file a written response that set forth any basis for this court's exercise of jurisdiction over the detention order at this time. Instead of filing a response to the jurisdictional show cause order, Mr. Harris filed a motion to withdraw pursuant to 10th Circuit Rule 46.4, stating that he "is not aware of any . . . basis for this Court's jurisdiction over the detention order at this time" and thus that "it appears Ms. Lundahl is best situated to address those matters identified by the Court in its [show cause order]."
Despite the filing restrictions this court previously imposed upon Ms. Lundahl in Lundahl v. Stock, et al., No. 03-4219 (10th Cir. June 8, 2005), the court took counsel's motion to withdraw under advisement and granted Ms. Lundahl permission to file—on or before June 23, 2021—a pro se response to the court's jurisdictional show cause order. However, despite this court's order and Ms. Lundahl's attempts to file motions and petitions for mandamus that did not respond to the jurisdictional show cause order, Ms. Lundahl has not filed a response to the jurisdictional show cause order or provided this court with any basis for it to exercise jurisdiction over this appeal. Instead, on the date her response to the show cause order was due, Ms. Lundahl filed a motion with the district court, asking it to reconsider Judge Rankin's order of detention. [ECF No. 297].
Upon consideration of Mr. Harris's motion to withdraw, the district court docket, and the applicable law, the court holds that, because Judge Rankin's order is subject to review by the district court—and the district court is in the process of that review—Judge Rankin's order is neither final nor appealable to this court. See 18 U.S.C. § 3145(b) (providing that, "[i]f a person is ordered detained by a magistrate judge . . ., the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order," which "shall be determined promptly"); 18 U.S.C. § 3145(c) (providing that appeal from decision denying revocation or amendment of detention order is governed by 28 U.S.C. § 1291, which, in turn, authorizes appeal of a "decision[ ] of the district court[ ]"); United States v. McKeighan, 243 Fed.Appx. 447, 447-48 (10th Cir. 2007) (per curiam) (dismissing appeal from magistrate judge's detention order for lack of jurisdiction); United States v. Harrison, 396 F.3d 1280, 1281 (2d Cir. 2005) (per curiam) (same); Charles Alan Wright, et al., Federal Practice and Procedure, § 3918.2 (2d ed. 2021) ("Because § 3145(c) provides that appeal from a release or detention order is governed by § 1291, which authorizes appeals only from final decisions of the district courts, an order entered by someone other than the district judge must be reviewed by the district judge before appeal can be taken to the court of appeals.").
Accordingly, the court dismisses this appeal for lack of jurisdiction and grants Mr. Harris's motion to withdraw as counsel for Ms. Lundahl.
APPEAL DISMISSED.