Schneider v. United States of America

Filing 2

ORDER dismissing 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) without prejudice as premature. Signed by Chief Judge William C Griesbach on 1/11/2013. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DARRELL M. SCHNEIDER,
Plaintiff,
v.

Case No. 12-C-1284

UNITED STATES OF AMERICA,
Defendant.

SCREENING ORDER

On December 17, 2012, Darrell M. Schneider filed a motion pursuant to 28 U.S.C. § 2255,
asserting that his conviction and sentence was unconstitutional due to a breach of his plea
agreement by the government and ineffective assistance of counsel. The motion seeks relief from
Schneider’s 2011 conviction for sexual abuse of a minor in violation of 18 U.S.C. §§ 1153(a) and
2243(a)(1). Schneider asserts that the government violated its plea agreement because it did not
move to dismiss two counts of the indictment charging Schneider with a violation of 18 U.S.C.
§ 2242(a) in exchange for Schneider agreeing to enter a plea to a lesser charge. Schneider requests
that the court vacate and set aside his conviction and sentence so that he may receive a new
sentencing hearing.
I must give the case prompt initial consideration pursuant to Rule 4 of the Rules Governing
§ 2255 Proceedings, which states:
If it plainly appears from the motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief, the judge must dismiss the
motion and direct the clerk to notify the moving party.

Rule 4, Rules Governing § 2255 Proceedings. During my initial review of a motion for habeas
relief, I look to see whether the movant has set forth cognizable constitutional or federal law
claims.
From the record before this Court, it appears that Schneider currently has an appeal pending
before the Seventh Circuit. Because the disposition of a direct appeal could render a § 2255 motion
moot, district courts “should not consider a § 2255 motion while a direct appeal is pending, absent
extraordinary circumstances.” United States v. Barger, 178 F.3d 844, 848 (7th Cir. 1999) (citing
United States v. Robinson, 8 F.3d 398, 405 (7th Cir. 1993)). Schneider submitted with his § 2255
motion three exhibits from his appeal indicating that his attorney filed a motion before the Seventh
Circuit seeking a dismissal on the basis of lack of jurisdiction because his judgment of conviction
was not final. The government agreed with Schneider’s position.
Schneider has not alleged any extraordinary circumstances that require consideration of his
§ 2255 motion during the pendency of his direct appeal. Schneider argues that his claim of
ineffective assistance of counsel is best brought in a § 2255 motion, which does find support in the
law. See United States v. Taglia, 922 F.2d 413, 417-19 (7th Cir. 1991). However, Schneider may
also pursue his claim of ineffective assistance of counsel on direct appeal. And the basis for his
motion to dismiss his appeal is that the Seventh Circuit has no jurisdiction because his conviction
is not final, suggesting that he is more likely to obtain the relief he seeks before the district court.
His § 2255 motion will therefore be dismissed without prejudice because it is premature. As the
Court does not reach the merits of Schneider’s claims, this order is not a decision on the legality
of his detention for purposes of 28 U.S.C. § 2244(a). Thus, Schneider may later file another § 2255
motion without it being a “second or successive” motion under 28 U.S.C. §§ 2244(b) and 2255(h).
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See O’Connor v. United States, 133 F.3d 548, 550 (7th Cir. 1998) (Section 2255 petition returned
to petitioner on the basis that no collateral attack could begin while appeal pending does not count
as initial petition for purposes of statutory restrictions on second or successive petitions).
Accordingly, Schneider’s' motion for postconviction relief under 28 U.S.C. § 2255 is
DISMISSED without prejudice as premature.
SO ORDERED this

11th

day of January, 2013.

s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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