Free Order on Motion to Vacate (2255) - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. Omar Alejandro Urias Leon, Defendant/Movant. United States of America, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) No. CR 04-028-PHX-SRB No. CV 08-1144-PHX-SRB (JJM) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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Movant Omar Alejandro Urias Leon, who is confined in the Federal Correctional Institution-Phoenix in Phoenix, Arizona, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. The Court will summarily deny the motion. Movant pled guilty to Possession with the Intent to Distribute Less than 5 Grams of Methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)©). On June 22, 2007, the Court sentenced Movant to a 120-month term of imprisonment followed by 3 years on supervised release. On July 2, 2007, Movant filed a Notice of Appeal (Doc. #206) to the United States Court of Appeals for the Ninth Circuit from the judgment of conviction and sentence. The United States Court of Appeals for the Ninth Circuit has instructed the district courts that they should not entertain § 2255 motions while there is a direct appeal pending in either the Ninth Circuit or the Supreme Court. United States v. Deeb, 944 F.2d 545, 548
Case 2:04-cr-00028-SRB Document 234 Filed 06/30/2008 Page 1 of 2

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(9th Cir. 1991); Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987); see also United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997); Rule 5, Rules Governing Section 2255 Proceedings for the United States District Courts, Advisory Comm. Note (1976) (absent extraordinary circumstances, the orderly administration of criminal justice precludes a district court from considering a § 2255 motion while review of the direct appeal is still pending). Accordingly, Movant's § 2255 Motion will be denied without prejudice pending resolution of Movant's direct appeal. IT IS THEREFORE ORDERED that the Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (Doc. #231 in CR 04028-PHX-SRB) is denied and that the civil action opened in connection with this Motion (CV 08-1144-PHX-SRB (JJM)) is dismissed without prejudice. The Clerk of Court must enter judgment accordingly.

DATED this 30th day of June, 2008.

Case 2:04-cr-00028-SRB

Document 234

-2Filed 06/30/2008

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