Xia v. USA

Filing 2

OPINION AND ORDER: This matter is dismissed for the reasons set forth in the Court's October 9, 2014 order issued with respect to Initial 2255 Petition. The dismissal is without prejudice to any action Xia may file once his direct appeal has bee n decided. The Clerk of Court is directed to mail a copy of this Order to Xia at the following address: Shu Feng Xia (USM# 67791-054) CI Moshannon Valley Correctional Center 555 Geo Drive Philipsburg, PA 16866 SO ORDERED. (See Order.) (Signed by Judge Ronnie Abrams on 10/31/2014) (ajs); [*** NOTE: Also docketed in related Criminal Case 12-CR-934-9(RA), see Doc.#384. ***] Modified on 10/31/2014 (bw).

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK I LS DC-SD NY DOCUMENT ELECTRONICALLY FILED DOC#: _ _ _ _ _ _ __ I n \ TF FILED:~.............,,,__..._.....,....._ I SHU FENG XIA, Movant, -againstUNITED STATES OF AMERICA, 14-cv-8284-RA No. 12-cr-934-RA-9 OPINION AND ORDER Respondent. RONNIE ABRAMS, United States District Judge: Movant Shu Feng Xia was convicted of conspiracy to commit immigration fraud pursuant to 18 U.S.C. § 371, United States v. Xia, No. 12-cv-934-RA-9 (S.D.N.Y. Aug. 12, 2014) (Dkt. 266), and his appeal is pending in the United States Court of Appeals for the Second Circuit. After his notice of appeal was filed, Xia filed three prose documents before this Court in which he asserted, among other things, that he had been denied the effective assistance of counsel during his criminal proceedings. The Court construed those documents as seeking relief under 28 U.S.C. § 2255, directed that they be opened as a new civil action, and dismissed the matter without prejudice to Xia's refiling his application once his direct appeal is complete. See Xia v. United States, No. 14-cv-7978-RA (S.D.N.Y. Oct. 9, 2014) (Dkt. 4) ("Initial 2255 Petition"). On October 7, 2014, Xia, proceeding prose, brought this motion under 28 U.S.C. § 2255, asserting in one paragraph that counsel was ineffective and asks the Court to "see the memo" he had previously submitted to the Court, an apparent reference to his prior submissions in his Initial 2255 Petition. (Motion,~~ 9(f), 1l(b) (Dkt. 1)) It appears that Xia filed this motion before he received the October 9, 2014 order dismissing the Initial 2255 Petition. This matter is dismissed for the reasons set forth in the Court's October 9, 2014 order issued with respect to Initial 2255 Petition. The dismissal is without prejudice to any action Xia may file once his direct appeal has been decided. The Clerk of Court is directed to mail a copy of this Order to Xia at the following address: Shu Feng Xia (USM# 67791-054) CI Moshannon Valley Correctional Center 555 Geo Drive Philipsburg, PA 16866 SO ORDERED. Dated: October 31, 2014 New York, New York Ronni Abrams United States District Judge 2

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