Gill v. USA - 2255
Filing
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MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 12/10/2015. (c/m 12/11/2015 nd2s, Deputy Clerk)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RAYMOND EDWARD GILL
Petitioner
v.
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UNITED STATES OF AMERICA
Respondent
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CIVIL ACTION NO. RDB-15-3746
CRIMINAL NO. RDB-13-577
*****
MEMORANDUM
OPINION
After a four-day jury trial Raymond Gill was convicted of armed bank robbery and
brandishing a firearm during a crime of violence, in violation of 18 U.S.C.
SS 2113(a)(d)(f)
and
924(c). On March 13,2015, criminal judgment was entered sentencing Gill to a 480 month term
in the U.S. Bureau of Prisons. See United States v. Gill, Criminal No. RDB-13-0577 (D. Md.) at
ECF No. 70.
Gill's Notice of Appeal remains pending and is proceeding with court-appointed
counsel.
On December 4, 2015, the Court received for filing Gill's self-represented
"Motion to
Dismiss, Vacate Sentence" dated November 30, 2015. Id. at ECF No. 108. The Motion was
construed as Gill's 28 U.S.C.
S 2255
Motion to Vacate. Absent extraordinary circumstances, a
district court is precluded from considering a
S
2255 motion while review of a defendant's
criminal case or direct appeal is pending. See McIver v. United States, 307 F.3d 1327, 1331 n. 2
(lith Cir. 2002) (noting that "collateral claims should not be entertained while a direct appeal is
pending" because direct review relief may render moot the issues also raised on collateral
review); Walker v. Connor, 72 Fed. Appx. 3 (4th Cir. 2003) (recognizing that
S 2255
motion is
premature when direct appeal is pending); see also Rendelman v. United States, 2008 WL
2945559 (D. Md. July 28, 2008) (quoting Bowen v. Johnson, 306 U.S. 19 (1939)), appeal
dismissed by 308 Fed. Appx. 685 (4th Cir. Jan. 22, 2009); Rules Governing Section 2255
Proceedings, Rule 5 (advisory committee note stating that courts have held that motions to
vacate are "inappropriate if the movant is simultaneously appealing the decision.").
Although
this general rule is not a jurisdictional bar, the orderly administration of criminal law precludes
consideration of a
9
2255 motion absent extraordinary circumstances.
See Tripati v. Henman,
843 F.2d 1160, 1162 (9th Cir. 1988).
Gill's
9 2255
Motion is premature. His criminal judgment is currently on appeal and he
has not alleged any extraordinary circumstances warranting review of the Motion. The Motion
to Vacate shall be dismissed without prejudice.!
When a District Court dismisses a Motion to Vacate solely on procedural grounds, a
Certificate of Appealability will not issue unless the Petitioner can demonstrate both "(1) 'that
jurists of reason would find it debatable whether the petition states a valid claim of the denial of
a constitutional right' and (2) 'that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.'" Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001)
(quoting Slack v. Daniel, 529 U.S. 473,484 (2000)). Gill has not made the required showing and
Gill is free to re-file his 28 U.S.C. 9 2255 Motion upon completion of the appeal process.
He is forewarned, however, that a one-year statute of limitation applies to a motion filed under S 2255.
The limitation period runs from the latest of: (1) the date on which the judgment of conviction becomes
final; (2) the date on which the impediment to making a motion created by governmental action in
violation of the Constitution or laws of the United States is removed, if the movant was prevented from
making a motion by such governmental action; (3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting
the claim or claims presented could have been made discoverable through the exercise of due diligence.
See 28 U.S.C. S 2255(f) (1)-(4). The Clerk shall send Gill a S 2255 form packet should he choose to refile his Motion in the future.
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the Court declines to issue a Certificate of Appealability. Gill's Motion to Vacate will be
dismissed without prejudice. A separate Order follows.
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RICHARD. D. BENNETT
UNITED STATES DISTRICT JUDGE
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