Filed: Mar. 13, 2018
Latest Update: Mar. 13, 2018
Summary: ORDER BRIAN MORRIS , District Judge . This case comes before the Court on Defendant/Movant Ronald Ray Horner's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. 2255. Horner is a federal prisoner proceeding pro se. Counsel for Horner filed a notice of appeal on November 30, 2017. Horner's appeal remains pending in the Court of Appeals. See Notice (Doc. 93); Order (Doc. 96). A 2255 motion is the equivalent of a petition for writ of habeas corpus. E.g. , Un
Summary: ORDER BRIAN MORRIS , District Judge . This case comes before the Court on Defendant/Movant Ronald Ray Horner's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. 2255. Horner is a federal prisoner proceeding pro se. Counsel for Horner filed a notice of appeal on November 30, 2017. Horner's appeal remains pending in the Court of Appeals. See Notice (Doc. 93); Order (Doc. 96). A 2255 motion is the equivalent of a petition for writ of habeas corpus. E.g. , Uni..
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ORDER
BRIAN MORRIS, District Judge.
This case comes before the Court on Defendant/Movant Ronald Ray Horner's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Horner is a federal prisoner proceeding pro se.
Counsel for Horner filed a notice of appeal on November 30, 2017. Horner's appeal remains pending in the Court of Appeals. See Notice (Doc. 93); Order (Doc. 96).
A § 2255 motion is the equivalent of a petition for writ of habeas corpus. E.g., United States v. Hayman, 342 U.S. 205, 210-19 (1952). "Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal." Bousley v. United States, 523 U.S. 614, 621 (1998) (quoting Reed v. Farley, 512 U.S. 339, 354 (1994), and Sunal v. Large, 332 U.S. 174, 178 (1947)). Consequently, district courts may not consider § 2255 motions before a conviction becomes final. See, e.g., United States v. Pirro, 104 F.3d 297, 299-300 (9th Cir. 1997); Rule 5, Rules Governing § 2255 Proceedings for the United States District Courts, advisory committee's note (quoting Womack v. United States, 395 F.2d 630, 631 (D.C. Cir. 1968)).
Horner's conviction will be final at the conclusion of all proceedings on appeal, including any petition for writ of certiorari to the United States Supreme Court. See Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987). When it is the appropriate time to file a § 2255 motion, Horner must assert in one motion all claims for relief he wishes the Court to consider. See generally 28 U.S.C. §§ 2255(h), 2244(b).
This law is well-settled. 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 HEREBY ORDERED as follows:
1. Horner's § 2255 motion (Doc. 102) is DISMISSED as premature. No action will be taken on it.
2. A certificate of appealability is DENIED. The Clerk of Court shall immediately process the appeal if Horner files a Notice of Appeal of this Order.
3. The Clerk of Court shall ensure that all pending motions in this case and in CV 18-52-GF-BMM are terminated and shall close the civil file by entering a judgment of dismissal.
