State v. Judd ( 2012 )

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 vs. No. 31,858 5 KEITH RUSSELL JUDD, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 James F. Blackmer, District Judge 9 Gary K. King, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Keith Russell Judd 13 Pro se Appellant 14 MEMORANDUM OPINION 15 GARCIA, Judge. 1 Defendant appeals an order denying his request to set a hearing on a motion. 2 We proposed to dismiss the appeal for two reasons. Defendant has timely responded. 3 We have considered his arguments and finding them unpersuasive, we dismiss. 4 First, we proposed to dismiss the appeal as Defendant had not timely filed a 5 notice of appeal in the district court. Defendant suggests that this Court should 6 transfer his timely notice to the district court. There is no authority for such a 7 procedure. Further, Defendant argues that he timely mailed the appeal and that we 8 should following the prison mail box rule. Even if we were to follow the prison mail 9 box rule, there is no indication in the record that a notice of appeal was filed in the 10 district court. That is where the notice of appeal must be filed. Thus, even if it was 11 timely filed, it was not filed in the proper court. 12 Second, we pointed out that there was no docketing statement for Defendant’s 13 appeal of this particular order. Defendant indicates that he mailed one. Even if he did 14 and it has been lost in the mail, we still have no way of knowing what issues he was 15 raising. Defendant could have sent us a copy of the docketing statement he asserts 16 that he mailed earlier. He did not. 17 Without a docketing statement and a properly filed notice of appeal, we decline 18 to hear the appeal. Insofar as Defendant alleges ineffective assistance of counsel, his 2 1 argument fails since he is not represented by counsel. He cannot claim ineffective 2 assistance of counsel when he is representing himself. 3 For the reasons stated herein and in the notice of proposed disposition, we 4 dismiss Defendant’s appeal from the order denying his request for a hearing. 5 IT IS SO ORDERED. 6 7 TIMOTHY L. GARCIA, Judge 8 WE CONCUR: 9 10 JONATHAN B. SUTIN Judge 11 12 J. MILES HANISEE, Judge 3