Serrano-Arauz v. United States of America

Filing 2

ATTACHED ORDER denying without prejudice 1 Motion to vacate, set aside, or correct sentence (2255). The Clerk shall enter judgment for Defendant and close case. See order for details. Signed by Judge Richard A. Lazzara on 12/4/2006. (CCB)

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Serrano-Arauz v. United States of America Doc. 2 Case 8:06-cv-02233-RAL-TGW Document 2 Filed 12/04/2006 Page 1 of 1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION SERRANO-ARAUZ, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. / ORDER CASE NO: 8:06-cv-2233-T-26TGW Plaintiff has filed a Motion to Vacate pursuant to 28 U.S.C. 2255. The Court notes, however, that Plaintiff filed a direct appeal from his sentence in the underlying criminal case and that his appeal is still pending before the Eleventh Circuit Court of Appeals.1 Given that circumstance, this Court is precluded from entertaining Plaintiff's motion to vacate. See United States v. Wilson, 894 F. 2d 1245, 1252 (11th Cir. 1990) (restating rule of the Eleventh Circuit that "[a] motion to vacate under 28 U.S.C. 2255 will not be entertained during the pendency of a direct appeal, inasmuch as the disposition of the appeal may render the motion moot.") (quoting Welsh v. United States, 404 F. 2d 333 (5th Cir. 1968)). Accordingly, it is ordered and adjudged as follows: 1) The Motion to Vacate (Dkt. 1) is dismissed without prejudice. 2) The Clerk is directed to enter judgment for Defendant and to close this case DONE AND ORDERED at Tampa, Florida, on December 4, 2006. s/Richard A. Lazzara RICHARD A. LAZZARA UNITED STATES DISTRICT JUDGE COPIES FURNISHED TO: Counsel of Record 1 See case number 8:05-cr-194-T-26TGW, docket 84.

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