U.S. v. Mix-Perez, 8:16-CR-331. (2018)
Court: District Court, D. Nebraska
Number: infdco20180412c08
Visitors: 4
Filed: Apr. 11, 2018
Latest Update: Apr. 11, 2018
Summary: MEMORANDUM AND ORDER JOHN M. GERRARD , District Judge . This matter is before the Court upon initial review of the pro se motion to vacate under 28 U.S.C. 2255 (filing 220) filed by the defendant, Julian Mix-Perez. The motion will be denied as premature. The defendant was sentenced on July 20, 2017, and judgment was entered on July 24. Filing 144. A notice of appeal was filed on August 1. Filing 149. That appeal was docketed in the U.S. Court of Appeals for the Eighth Circuit as No. 17-2
Summary: MEMORANDUM AND ORDER JOHN M. GERRARD , District Judge . This matter is before the Court upon initial review of the pro se motion to vacate under 28 U.S.C. 2255 (filing 220) filed by the defendant, Julian Mix-Perez. The motion will be denied as premature. The defendant was sentenced on July 20, 2017, and judgment was entered on July 24. Filing 144. A notice of appeal was filed on August 1. Filing 149. That appeal was docketed in the U.S. Court of Appeals for the Eighth Circuit as No. 17-27..
More
MEMORANDUM AND ORDER
JOHN M. GERRARD, District Judge.
This matter is before the Court upon initial review of the pro se motion to vacate under 28 U.S.C. § 2255 (filing 220) filed by the defendant, Julian Mix-Perez. The motion will be denied as premature.
The defendant was sentenced on July 20, 2017, and judgment was entered on July 24. Filing 144. A notice of appeal was filed on August 1. Filing 149. That appeal was docketed in the U.S. Court of Appeals for the Eighth Circuit as No. 17-2707, where it remains pending. And the defendant cannot pursue postconviction relief while his direct appeal is still pending. See United States v. Jagim, 978 F.2d 1032, 1042 (8th Cir. 1992); Masters v. Eide, 353 F.2d 517, 518 (8th Cir. 1965).
Accordingly, the defendant's motion to vacate will be denied without prejudice. And because that conclusion is not debatable, the Court will not issue a certificate of appealability. See Tennard v. Dretke, 542 U.S. 274, 282 (2004); see also Gonzalez v. Thaler, 132 S.Ct. 641, 648 (2012).
IT IS ORDERED:
1. The defendant's motion to vacate under 28 U.S.C. § 2255 (filing 220) is denied without prejudice.
2. A separate judgment will be entered.
3. The Court will not issue a certificate of appealability.
4. The Clerk is directed to mail a copy of this Memorandum and Order to the defendant at his last known address.
Source: Leagle
