Elion v. USA

Filing 3

MEMORANDUM AND ORDER, The Court DENIES without prejudice Elion's § 2255 motion (Doc. 1) and DIRECTS the Clerk of Court to enter judgment accordingly. Signed by Judge J. Phil Gilbert on 8/28/2017. (jdh)

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS OTIS R. ELION, Petitioner, v. Civil No. 17-cv-892-JPG UNITED STATES OF AMERICA, Criminal No 06-cr-40061-JPG & 16-cr-40046-JPG Respondent. MEMORANDUM AND ORDER This matter comes before the Court on petitioner Otis R. Elion’s motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). On January 11, 2017, the petitioner pled guilty to three counts of distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) in Case No. 16-cr-40046-JPG and admitted to allegations supporting a supervised release revocation in Case No. 06-cr-40061-JPG based on the same conduct. The Court sentenced the petitioner to serve 167 months in prison in Case No. 16-cr-40046-JPG and 33 months in Case No. 06-cr-40061-JPG. Contrary to Elion’s assertions in his filings, both judgments are currently on appeal (App. Case Nos. 17-2012 & 17-2020). Because Elion’s criminal judgments are still on appeal, the Court will dismiss this case without prejudice as premature. Section 2255(a) states that a prisoner in federal custody “may move the court which imposed the sentence to vacate, set aside or correct the sentence.” The statute places no time restriction on how early a convicted defendant may file a § 2255 motion. However, it is well-established that, while there is no jurisdictional bar to a district court’s consideration of a § 2255 motion while the associated criminal case is on direct appeal, DeRango v. United States, 864 F.2d 520, 522 (7th Cir. 1988), the district court should refrain from exercising that jurisdiction unless there are extraordinary circumstances, United States v. Robinson, 8 F.3d 398, 405 (7th Cir. 1993). This is because the disposition of the appeal may render the § 2255 motion moot. Id. In deciding whether to exercise jurisdiction over a § 2255 motion while an appeal is pending, courts should balance the need for speedy relief against the need to economize on judicial resources. Id. Elion has not pointed to any extraordinary circumstances that would justify considering this § 2255 motion while his underlying criminal judgments are still on appeal. Accordingly, the Court DENIES without prejudice Elion’s § 2255 motion (Doc. 1) and DIRECTS the Clerk of Court to enter judgment accordingly. IT IS SO ORDERED. DATED: August 28, 2017 s/ J. Phil Gilbert J. PHIL GILBERT DISTRICT JUDGE 2

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