MELVIN v. U.S., 3:07-cr-138 (2013)
Court: District Court, E.D. Tennessee
Number: infdco20130625d01
Visitors: 24
Filed: Jun. 24, 2013
Latest Update: Jun. 24, 2013
Summary: MEMORANDUM THOMAS W. PHILLIPS, District Judge. This is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. 2255. Petitioner pleaded guilty to three counts of distributing five grams or more of crack cocaine and was sentenced to concurrent terms of imprisonment of 262 months. Petitioner appealed his sentence and that appeal remains pending. Absent extraordinary circumstances, a district court is precluded from entertaining a 2255 motion while a direct appeal from the s
Summary: MEMORANDUM THOMAS W. PHILLIPS, District Judge. This is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. 2255. Petitioner pleaded guilty to three counts of distributing five grams or more of crack cocaine and was sentenced to concurrent terms of imprisonment of 262 months. Petitioner appealed his sentence and that appeal remains pending. Absent extraordinary circumstances, a district court is precluded from entertaining a 2255 motion while a direct appeal from the sa..
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MEMORANDUM
THOMAS W. PHILLIPS, District Judge.
This is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Petitioner pleaded guilty to three counts of distributing five grams or more of crack cocaine and was sentenced to concurrent terms of imprisonment of 262 months. Petitioner appealed his sentence and that appeal remains pending.
Absent extraordinary circumstances, a district court is precluded from entertaining a § 2255 motion while a direct appeal from the same conviction is still pending. Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998). This case presents no extraordinary circumstances compelling district court review at this time. Accordingly, the motion to vacate, set aside or correct sentence will be DENIED and this action DISMISSED WITHOUT PREJUDICE.
The court will CERTIFY that any appeal from this action would not be taken in good faith and would be totally frivolous. A certificate of appealability SHALL NOT ISSUE. 28 U.S.C. § 2253. The court will DENY the petitioner leave to proceed in forma pauperis on appeal. See Rule 24 of the Federal Rules of Appellate Procedure.
AN APPROPRIATE ORDER WILL ENTER.
Source: Leagle
