Kilgore v. USA

Filing 4

ORDER dismissing without prejudice 1 MOTION to Vacate Sentence per 28 USC 2255. Signed by Chief Judge Barbara B. Crabb on 5/28/2009. (vob)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------U N IT E D STATES OF AMERICA, ORDER Plaintiff, 0 9 - cv -3 2 8 - b b c 08-cr-0038-bbc-01 v. M A R C U S KILGORE, D efendan t. --------------------------------------------D e fen dan t Marcus Kilgore has filed a motion for post conviction relief under 28 U .S .C . § 2255. On January 9, 2009, defendant was convicted in this court of being a felon in possession of firearms and ammunition. On February 5, 2009, defendant appealed his con viction to the Court of Appeals for the Seventh Circuit. His appeal is pending. A bsen t extraordinary circumstances, the district court should not consider § 2255 m otions while a direct appeal is pending. United States v. Robinson, 8 F.3d 398 (7th Cir. 1 99 3). Defendant has not alleged any extraordinary circumstances that require

con sideration of his § 2255 motion while his appeal is pending. Therefore, I will dismiss defendan t's 28 U.S.C. § 2255 motion without prejudice because it is premature.

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I am aware that 28 U.S.C. § 2244(a) would prevent the court from entertaining a secon d motion by defendant under 28 U.S.C. § 2255 if I had decided the legality of his detention in this motion. Because the motion is denied as premature and not on the merits, defendant may file a new § 2255 motion after his appeal is decided. Such a motion would no t be "second or successive" motion under 28 U.S.C. 2244(a). O'Connor v. United States, 1 3 3 F. 3d 548, 694 (7th Cir.1998) (when § 2255 petition is returned to petitioner on ground that no collateral attack could be begun while appeal pending, it does not count as p etitio n ; petitioner may file new motion after appeal decided without obtaining permission from the court of appeals).

ORDER IT IS ORDERED that defendant Marcus Kilgore's motion for post conviction relief un der 28 U.S.C. § 2255 is DISMISSED without prejudice as premature. E n tered this 28t h day of May, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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