Cardoso-Lopez v. United States of America

Filing 4

ORDER dismissing 1 Motion to Vacate Sentence per 28 USC 2255. Signed by Chief Judge Barbara B. Crabb on 9/18/09. (rep)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------U N IT E D STATES OF AMERICA, ORDER Plaintiff, 09-cv-509-bbc 08-cr-133-bbc v. JO R G E CARDOSO-LOPEZ, D efendan t. --------------------------------------------D efendan t Jorge Cardoso-Lopez 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 illegal reentry by a previously deported alien. On January 12, 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 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 not be "second o r successive" motion under 28 U.S.C. 2244(a). O'Connor v. United States, 133 F. 3d 548, 6 9 4 (7th Cir.1998) (when § 2255 petition is returned to petitioner on ground that no co llateral attack could be begun while appeal pending, it does not count as petition; petitioner may file new motion after appeal decided without obtaining permission from the cou rt of appeals).

ORDER IT IS ORDERED that defendant Jorge Luis Cardoso-Lopez's motion for post con viction relief under 28 U.S.C. § 2255 is DISMISSED without prejudice as premature.

Entered this 18th day of September, 2009. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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