United States v. Joseph Duncan, III

MEMORANDUM and ORDER

Defendant Joseph Edward Duncan appeals the district court’s order reinstating its prior order granting the government’s motion to strike standby counsel’s November 2008 notice of appeal. Defendant also filed a renewed motion in this court, seeking to withdraw his earlier waiver of appeal and to reinstate the November 2008 notice of appeal. We affirm the district court’s order and deny Defendant’s untimely motion to reinstate his appeal.

We review for clear error the district court’s factual determination on remand that Defendant was competent to waive his right to appeal. Massie ex rel. Kroll v. Woodford, 244 F.3d 1192, 1194 (9th Cir. 2001) (per curiam); see also Demosthenes v. Baal, 495 U.S. 731, 735 , 110 S.Ct. 2223 , 109 L.Ed.2d 762 (1990) (per curiam) (noting that a competency determination is entitled to a presumption of correctness). A district court’s factual finding is clearly erroneous if it lacks evidentiary support or “if it was induced by an erroneous view of the law.” Ritter v. Morton, 513 F.2d 942, 949 (9th Cir.1975) (per curiam). A factual finding lacks evidentiary support if, after reviewing the record, we are “left with the definite and firm…