United States of America v. Philip Michael Sebolt

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7900
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILIP MICHAEL SEBOLT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:12-cr-00033-JAG-1)
Submitted: March 17, 2016 Decided: March 22, 2016
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Philip Michael Sebolt, Appellant Pro Se. Thomas Kennerly
Johnstone, IV, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, Elizabeth Wu, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Philip Sebolt appeals the district court’s order denying
his motion for appointment of counsel and for an extension of
time to file a motion for a new trial, pursuant to Fed. R. Crim.
P. 33. We review for abuse of discretion the district court’s
denial of a motion for appointment of counsel or for an
extension of time. See United States v. Cates, 716 F.3d 445,
446 (7th Cir. 2013) (extension of time); United States v.
Williamson, 706 F.3d 405, 418 n.11 (4th Cir. 2013) (motion under
18 U.S.C. § 3006A (2012)); Miller v. Simmons, 814 F.2d 962, 966
(4th Cir. 1987) (motion for counsel). We review questions of
law de novo. United States v. Westbrooks, 780 F.3d 593, 595
(4th Cir. 2015).
As Sebolt recognizes, this court has already determined
that there exists no constitutional right to counsel in a post-
appeal Rule 33 motion. Williamson, 706 F.3d at 415. Insofar as
Sebolt seeks to revisit this holding, “[a] panel of this court
cannot overrule, explicitly or implicitly, the precedent set by
a prior panel of this court.” United States v. Rivers, 595 F.3d
558, 564 n.3 (4th Cir. 2010) (internal quotation marks omitted).
The exculpatory evidence Sebolt seeks is, at this juncture,
purely speculative. Even assuming he could obtain such
evidence, and despite his arguments to the contrary, Sebolt
could not demonstrate the diligence required for granting Rule

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33 relief. See United States v. Moore, 709 F.3d 287, 292 (4th
Cir. 2013) (citing United States v. Chavis, 880 F.2d 788, 793
(4th Cir. 1989)) (discussing test). Because the district court
was not required to authorize Sebolt’s fishing expedition, we
discern no abuse of discretion in the district court’s
discretionary denial of counsel or an extension of time to file
a Rule 33 motion. See Whisenant v. Yuam, 739 F.2d 160, 163 (4th
Cir 1984) (discussing exceptional circumstances warranting
discretionary appointment of counsel), abrogated on other
grounds by Mallard v. U.S. Dist. Ct., 490 U.S. 296 (1989).
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

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