Valdez v. USA

Filing 3

ORDER that the 1 Petition for Post-Conviction Relief (Doc. 195 in CR-11-2492-PHX-DGC) is denied and this civil action opened in connection is dismissed without prejudice. The Clerk of Court must enter judgment accordingly. Signed by Judge David G Campbell on 1/15/2014. (LFIG)

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1 2 MDR WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 United States of America, 10 Plaintiff, 11 vs. 12 No. CV 13-2557-PHX-DGC (LOA) CR 11-2492-PHX-DGC Ysidro Juan Valdez, ORDER 13 Defendant/Movant. 14 15 Movant Ysidro Juan Valdez, who is confined in the Corrections Corporation of 16 America’s Central Arizona Detention Center in Florence, Arizona, has filed a pro se 17 Petition for Post-Conviction Relief, which the Court will construe as a Motion Under 28 18 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.1 19 The Court will summarily deny the Petition. 20 On September 9, 2013, Movant filed a Notice of Appeal (Doc. 180) to the United 21 States Court of Appeals for the Ninth Circuit from the judgment of conviction and 22 sentence. The United States Court of Appeals for the Ninth Circuit has instructed the 23 district courts that they should not entertain § 2255 motions while there is a direct appeal 24 pending in either the Ninth Circuit or the Supreme Court. United States v. Deeb, 944 25 F.2d 545, 548 (9th Cir. 1991); Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987); 26 see also United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997); Rule 5, Rules 27 28 1 relief. The Petition is filed on a form for filing a state-court petition for post-conviction 1 Governing Section 2255 Proceedings for the United States District Courts, Advisory 2 Comm. Note (1976) (absent extraordinary circumstances, the orderly administration of 3 criminal justice precludes a district court from considering a § 2255 motion while review 4 of the direct appeal is still pending). Accordingly, Movant’s Petition will be denied 5 without prejudice pending resolution of Movant’s direct appeal. 6 IT IS THEREFORE ORDERED that the Petition for Post-Conviction Relief 7 (Doc. 195 in CR 11-2492-PHX-DGC) is denied and that the civil action opened in 8 connection with this Motion (CV 13-2557-PHX-DGC (LOA)) is dismissed without 9 prejudice. The Clerk of Court must enter judgment accordingly. 10 Dated this 15th day of January, 2014. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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