Summary
relying on Miramontez and holding that appeal from post-judgment order denying motion to set aside protective order was civil
Summary of this case from United States v. MoralesOpinion
No. 07-1527.
Submitted: September 25, 2008.
Filed: September 30, 2008.
Appeal from the United States District Court for the District of North Dakota.
Christopher Cory Myers, U.S. Attorney's Office, Fargo, ND, for Appellee.
Kristopher Kai Hamberg, Terre Haute, IN, pro se.
Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
[UNPUBLISHED]
Kristopher Hamberg appeals the district court's post-judgment order partially denying his motion to set aside a protective order. As a threshold matter, we conclude that Hamberg's motion; to set aside the protective order was civil in nature, and thus his notice of appeal was timely filed. See Fed.R.App.P. 4(a)(1)(B) (in civil case, when United States is party, time to file NOA is 60 days after entry of judgment or order being appealed); cf. United States v. Miramontez, 995 F.2d 56, 58 (5th Cir. 1993) (defendant's post-judgment request for disclosure of grand jury transcripts was civil in nature because, inter alia, criminal conviction had long been final and stated purpose of request was need for materials to file civil habeas petition).
The Honorable Rodney S. Webb, United States District Judge for the District of North Dakota.
Upon review, we conclude that the types of issues raised in Hamberg's motion are more appropriately addressed in a collateral proceeding under 28 U;S.C. § 2255. Accordingly, we modify the district court's order to be without prejudice, and we affirm the order as modified.