CLD

- 261 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

___________

No. 13

- 1727

___________

UNITED STATES OF AMERICA

v.

RICHARD RIVERA, also known as RICHARD TORO,
also known as MAGOO

Richard Rivera,

Appellant

____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania (D.C. Criminal No. 2:09

- cr

- 00003

- 002 ) District Judge: Honorable Mary A. McLaughlin

__________________________ __________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

May 31, 2013
Before: RENDELL, JORDAN and SHWARTZ

, Circuit Judges

(Opinion filed : June 14, 2013 )

_________

OPINION

_________2

PER CURIAM

Richard Rivera is a f

ederal prisoner whose conviction and sentence we recently

affirmed. See generally United States v. Rivera , 441 F. App ’ x 87 (3d Cir.)

, cert. denied

,

132 S. Ct. 791 (2011). At the beginning of 2013 , Rivera filed a motion requesting “one

copy each of all au dio recordings and transcript[s] of audio recordings” so that he might

“review the discovery and prepare his § 2255 motion” (which was not yet filed). The

Government opposed the request , explaining that Rivera’s trial counsel possessed

discovery materials ; that other information had been provided to Rivera through a

separate FOIA proceeding; and that certain protective orders on the criminal docket

limited the dissemination and reproduction of, inter alia, “unredacted portions of the

discovery materials.” The District Court denied Rivera’s motion without comment, and

Rivera now seeks our review of that order.

We have jurisdiction pursuant to 28 U.S.C. § 1291

. United States v. Thomas , 713

F.3d 165, 173

– 74 (3d Cir. 2013). 1 We conclude that the District Co urt did not abuse its

1 We pause, by necessity, to point out that Rivera’s notice of appeal is dated March 6, 2013. Assuming that the notice was “filed” on that date pursuant to the prison mailbox rule, see Fed. R. App. P. 4(c)(1), fifteen days elapsed between the District Court’s February 19 order and the filing of the notice of appeal . The timeliness of this appeal thus depends on whether the sixty

- day civil period of Fed. R. App. P. 4(a)(1)(B) or the
fourteen

- day criminal period of Fed. R. App. P. 4(b)(1)(A) applies. Under the former, the notice would be timely; under the latter, it would be tardy. In Thomas , which involved

an appeal from an order denying a motion to extend the time to file a 28 U.S.C. § 2255 motion where no actual § 2255 motion had been filed , we discussed the hybrid nature of3

discretion by denying the request. See Lloyd v. Hovensa , LLC , 369 F.3d 263, 274 (3d

Cir. 2004) . The protective orders entered by the District Court, the alternative ways by

which Rivera might obtain essentially the same material he now requests, and a lack of

clear explanation of why unredacted copies are needed all support the District Court’s

ruling. Because this appeal does not present a substantial question , we will summar il y

affirm the District Court’s decision. 2 See Murray v . Bledsoe , 650 F.3d 246, 248 (3d Cir.

2011) (per curiam); see also 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6

.

these types of filings. See Thomas , 713 F.3d at 173

– 74 (explaining the District Court retains subject matter jurisdiction to rule on such motions because they are a continuation of the criminal case); see also id. at 173 n.11 (emphasizing that appeals of § 2255 dispositions are governed by the civil rules ). However, we did not need to decide which part of Fed. R. App. P. 4 applied because the Thomas notice of appeal, which was filed ten days after the relevant order was entered, was timely either way. Other c ases discussing miscellaneous criminal post

- judgment motions like the one here yield no clear
direction. Compare Uni ted States v. Davis , 532 F.2d 752, 752 (4th Cir. 1976) (per curiam) (suggesting that a post

- judgment transcript request was a criminal matter), with
United States v. Miramontez , 995 F.2d 56, 58 (5th Cir. 1993) (holding that post

judgment, post

- collateral

- r elief request for grand

- jury transcripts was “civil in nature” and governed by Rule 4(a)).

In any event, we will consider the merits of this appeal. If it is a criminal matter, and governed by non

-

jurisdictional Fed. R. App. P. 4(b) time limit

, the Gov ernment has not raised a timeliness objection

. See United States v. Muhammud , 701 F.3d 109, 111 (3d Cir. 2012). And i f the appeal is civil and governed by Fed. R. App. P. 4(a) , it is timely and no certificate of appealability is required, despite the pos sible connection with a forthcoming 28 U.S.C. § 2255 motion. See Harbison v. Bell , 556 U.S. 180, 183 (2009).

2 Our decision today does not preclude Rivera from making proper discovery requests (in compliance with Rule 6 of the Rules Governing § 2255 Pr oceedings) once his § 2255
motion has been filed.