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Ellenburg v. State

Supreme Court of Montana

December 31, 2013

MICHAEL ELLENBURG, Petitioner and Appellant,
v.
STATE OF MONTANA, Respondent and Appellee.

ORDER

Appellant Michael Ellenburg has filed a motion to incorporate newly discovered evidence into the above-captioned appeal. The State of Montana has not filed a response.

Ellenburg filed his opening brief on October 18, 2013 and the State filed a response brief on December 17, 2013. Ellenburg has 14 days after December 17 to file his reply brief should he choose to do so. Once the brief is filed or the time for doing so has elapsed, the matter will be fully briefed and scheduled for classification by this Court.

Ellenburg seeks leave to incorporate several exhibits regarding a claim that his public defender abandoned him in April 2006 by failing to file a notice of withdrawal or a brief consistent with Anders v. California, 386 U.S. 738 (1967). Ellenburg relies for his claim of "newly discovered evidence" on a letter from the Missoula County Clerk of Court dated July 26, 2012, long before his appeal in this case. Further, his request was made well after his opening brief was filed, and the response brief now has been filed. Consequently, his motion is untimely and without basis.

IT IS THEREFORE ORDERED that the motion to incorporate newly discovered evidence is DENIED.

The Clerk is directed to serve a copy of this Order upon counsel of record and Michael Ellenburg.


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