Filed: Jan. 16, 2020
Latest Update: Jan. 16, 2020
Summary: ORDER DENYING RULE 59 MOTION AND DENYING CERTIFICATE OF APPEALABILITY DANA L. CHRISTENSEN , Chief District Judge . On January 6, 2020, the Court dismissed Defendant Fourstar's motion to vacate, set aside, or correct the sentence under 28 U.S.C. 2255 (Doc. 324) because the revocation judgment he challenges in the 2255 motion is currently before the Ninth Circuit Court of Appeals on direct review. See Order (Doc. 325); see also United States v. Fourstar, No. 19-30200 (9th Cir. filed A
Summary: ORDER DENYING RULE 59 MOTION AND DENYING CERTIFICATE OF APPEALABILITY DANA L. CHRISTENSEN , Chief District Judge . On January 6, 2020, the Court dismissed Defendant Fourstar's motion to vacate, set aside, or correct the sentence under 28 U.S.C. 2255 (Doc. 324) because the revocation judgment he challenges in the 2255 motion is currently before the Ninth Circuit Court of Appeals on direct review. See Order (Doc. 325); see also United States v. Fourstar, No. 19-30200 (9th Cir. filed Au..
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ORDER DENYING RULE 59 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
DANA L. CHRISTENSEN, Chief District Judge.
On January 6, 2020, the Court dismissed Defendant Fourstar's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 (Doc. 324) because the revocation judgment he challenges in the § 2255 motion is currently before the Ninth Circuit Court of Appeals on direct review. See Order (Doc. 325); see also United States v. Fourstar, No. 19-30200 (9th Cir. filed Aug. 29, 2019).
Fourstar now moves to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). Any non-frivolous allegations, see Rule 59 Mot. (Doc. 326) at 1-2, may be raised on direct review, or they are properly deferred to collateral review after direct review concludes, see, e.g., United States v. Pirro, 104 F.3d 297, 299-300 (9th Cir. 1997), or they are not properly brought in a § 2255 motion. Fourstar identifies no sound reason to alter or amend the dismissal of his § 2255 motion in favor of the pending direct appeal.
A certificate of appealability is not warranted. See Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Accordingly, IT IS ORDERED:
1. Fourstar's Rule 59 motion (Doc. 326) is DENIED.
2. A certificate of appealability is DENIED. The Clerk of Court shall immediately process the appeal if Fourstar files a Notice of Appeal.
