Opinion
No.: 2:14-cv-199 No.: 2:12-cr-40(1)
10-28-2014
EMILIO BELTRAN-SANCHEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Greer/ Inman
MEMORANDUM OPINION
Federal inmate Emilio Beltran-Sanchez ("petitioner") brings this pro se motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255, (Doc. 17). Following his guilty plea, petitioner was convicted of one count of illegal presence by an alien in the United States, in violation of 8 U.S.C. § 1325(a). His judgment of conviction, fixing a 5-month (time served) sentence of imprisonment and a one-year term of supervised release, was entered on July 23, 2012, (Doc. 11).
All citations to the record refer to petitioner's criminal file.
On the same day as he filed this instant § 2255 motion, petitioner submitted a notice of appeal, (Doc. 16). The appeal is pending in the Sixth Circuit, but the United States has filed a motion to dismiss it based on an untimely filed notice of appeal, (Sixth Circuit Court of Appeals, see online at https://ecf.ca6.uscourts.gov/ cmecf/ servlet/ TransportRoom?servlet=CaseSummary.jsp&caseNum=14-5791&incOrigDkt=Y&incDkt Entries=Y (Internet materials as visited Oct. 10, 2014, and available in Clerk of Court's case file.)). Even so, it remains that petitioner's appeal is still pending in the Sixth Circuit.
A defendant who has a direct appeal pending may not maintain a 28 U.S.C. § 2255 action, absent extraordinary circumstances. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir.1998) (adopting the rule that, in the absence of extraordinary circumstances, a district court is precluded from considering a § 2255 application during the pendency of a direct appeal).
Petitioner has presented no extraordinary circumstances that would cause the Court to entertain this motion. Accordingly, petitioner's 28 U.S.C. § 2255 action will be DISMISSED without prejudice by separate order.
The Court FINDS, in view of the basis for the dismissal, that petitioner has failed to make a substantial showing of the denial of a constitutional right because jurists of reason would not debate the correctness of the procedural ruling disposing of this motion. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, petitioner is DENIED issuance of a certificate of appealability. Fed. R. App. P. 22(b).
ENTER:
s/ J. RONNIE GREER
UNITED STATES DISTRICT JUDGE