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Powell v. United States

April 23, 2007

MARILYN POWELL, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Thomas W. Phillips United States District Judge

MEMORANDUM OPINION

This is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. The Clerk is DIRECTED to serve a copy of the motion and this Memorandum Opinion and accompanying Judgment Order on the United States Attorney. However, for the reasons stated below, the United States Attorney shall not be required to file an answer or other pleading to the motion, and the motion will be DENIED.

Petitioner pleaded guilty to three counts of aiding and abetting making false, fictitious or fraudulent claims against the United States and was sentenced to concurrent terms of imprisonment of 48 months. Petitioner appealed her sentence and that appeal remains pending.

Absent extraordinary circumstances, a district court is precluded from entertaining a § 2255 motion while a direct appeal from the same conviction is still pending. Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998). This case presents no extraordinary circumstances compelling district court review at this time. Accordingly, the motion to vacate, set aside or correct sentence will be DENIED and this action DISMISSED.

The court CERTIFIES that any appeal from this action would not be taken in good faith and would be totally frivolous. A certificate of appealability SHALL NOT ISSUE.

28 U.S.C. § 2253. The court will DENY the petitioner leave to proceed in forma pauperis on appeal. See Rule 24 of the Federal Rules of Appellate Procedure.

AN APPROPRIATE ORDER WILL ENTER.

20070423

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