Lopez-Valencia v. USA

Filing 3

ORDER, the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody 1 is denied and the civil action opened in connection with this Motion is dismissed without prejudice; the Clerk must enter judgment accordingly, re: CR 14-1153-PHX-SMM. Signed by Senior Judge Stephen M McNamee on 7/22/15. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,

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Plaintiff,
v.

No. CV 15-1320-PHX-SMM (JFM)
CR 14-1153-PHX-SMM
ORDER

Erasmo Lopez-Valencia,
Defendant/Movant.

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On July 13, 2015, Movant Erasmo Lopez-Valencia, who is confined in the Giles

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W. Dalby Correctional Facility in Post, Texas, filed a pro se Motion Under 28 U.S.C.

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§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. The

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Court will summarily deny the Motion.

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Movant pled guilty to Re-Entry of Removed Alien, in violation of 8 U.S.C.

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§ 1326(a), with sentencing enhancement pursuant to 8 U.S.C. § 1326(b)(1).

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December 11, 2014, the Court sentenced Movant to a 27-month term of imprisonment

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followed by 3 years on supervised release.

On

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On June 29, 2015, Movant filed a Notice of Appeal to the United States Court of

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Appeals for the Ninth Circuit from the judgment of conviction and sentence. The United

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States Court of Appeals for the Ninth Circuit has instructed the district courts that they

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should not entertain § 2255 motions while there is a direct appeal pending in either the

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Ninth Circuit or the Supreme Court. United States v. Deeb, 944 F.2d 545, 548 (9th Cir.

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1991); Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987); see also United States

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v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997); Rule 5, Rules Governing Section 2255

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Proceedings for the United States District Courts, Advisory Comm. Note (1976) (absent

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extraordinary circumstances, the orderly administration of criminal justice precludes a

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district court from considering a § 2255 motion while review of the direct appeal is still

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pending).

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pending resolution of Movant’s direct appeal.

Accordingly, Movant’s § 2255 Motion will be denied without prejudice

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IT IS THEREFORE ORDERED that the Motion Under 28 U.S.C. § 2255 to

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Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 36 in

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CR 14-1153-PHX-SMM) is denied and that the civil action opened in connection with

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this Motion (CV 15-1320-PHX-SMM (JFM)) is dismissed without prejudice.

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Clerk of Court must enter judgment accordingly.

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DATED this 22nd day of July, 2016.

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Honorable Stephen M. McNamee
Senior United States District Judge

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The