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

1 2 3 4 5 6 7 8 9 10 United States of America, 11 12 v. 13 Keith D. Priest, 14 15 16

JWB

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Plaintiff,

Defendant/Movant.

) ) ) ) ) ) ) ) ) ) )

No. CR 03-0344-PHX-MHM No. CV 07-0130-PHX-MHM (LOA) ORDER

Movant, presently confined in the Lower Buckeye Jail in Phoenix, Arizona, has filed

17 a pro se "Motion to Vacate, Set Aside, Or Correct Sentence by a Person in Federal Custody 18 (28 U.S.C. § 2255)" (Doc. # 1090). On July 6, 2006, he was sentenced by this Court to a term 19 of 18 months after a jury trial stemming from charges of willful failure to file an income tax 20 return. The Court will summarily dismiss the motion without prejudice. 21 I. 22

Movant has a Pending Appeal in the Ninth Circuit On July 6, 2006, a notice of appeal was filed by Movant (Doc. # 909). As a result, See United States v.

23 there is an appeal pending in the Ninth Circuit Court of Appeals.

24 Corona-Garcia, No. 05-1005 (9th Cir.) and United States v. Corona-Garcia, No. 05-10027 25 (9th Cir.). 26

For reasons of judicial economy, district courts should not consider an application for

27 writ of habeas corpus when the petitioner has a direct appeal pending in the Court of Appeals 28 or the Supreme Court. United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1996) (citing United Case 2:03-cr-00344-MHM Document 1097 Filed 02/14/2007 Page 1 of 2

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States v. Deeb, 944 F.2d 545, 548 (9th Cir. 1991), cert. denied, 503 U.S. 975 (1992)). "`Except under most unusual circumstances ... no defendant in a federal criminal prosecution is entitled to have a direct appeal and a section 2255 proceeding considered simultaneously in an effort to overturn the conviction and sentence.'" Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.) (quoting Jack v. United States, 435 F.2d 317, 318 (9th Cir. 1970), cert. denied, 402 U.S. 933 (1971)), cert. denied, 488 U.S. 982 (1988). See also Rule 5, Rules Governing Section 2255 Proceedings, Advisory Committee Note ("[T]he courts have held that [a § 2255 motion] is inappropriate if the movant is simultaneously appealing the decision."). There are no unusual circumstances that would justify an exception to this rule. Accordingly, the § 2255 Motion will be dismissed without prejudice. IT IS THEREFORE ORDERED THAT: (1) Motion to Vacate, Set Aside, Or Correct Sentence by a Person in Federal Custody (28 U.S.C. § 2255)" (Doc. # 1090) is DISMISSED without prejudice; and (2) That the Clerk of Court shall terminate the civil action, CV 07-0130-PHX-MHM (LOA), which was opened in connection with this matter. DATED this 12th day of February, 2007.

Case 2:03-cr-00344-MHM

-2Document 1097 Filed 02/14/2007

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