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Ruiz-Baldovinos v. United States

January 15, 2008

GILBERTO RUIZ-BALDOVINOS*FN1
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: Harry S. Mattice, Jr. United States District Judge

Mattice/Lee

MEMORANDUM

Pending before the Court is a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 filed by Gilberto Ruiz-Baldovinos ("Ruiz-Baldovinos") (Court File No. 25). Apparently, Ruiz-Baldovinos does not realize he has an appeal pending in his criminal case. In his § 2255 motion Ruiz-Baldovinos claims he instructed counsel to file an appeal but his counsel failed to do so. However, the record indicates Ruiz-Baldovinos' counsel filed a notice of appeal on January 25, 2007 (Court File # 18). The defendant's direct criminal appeal is pending before the Sixth Circuit Court of Appeals in Case No. 07-5127.

Ruiz-Baldovinos' conviction has not become final for purposes of the one-year limitation period under 28 U.S.C. § 2255 since he presently has an appeal pending. Consequently, he has prematurely filed his § 2255 motion. After reviewing the record and the applicable law ,*fn2 the Court concludes that the motion for post conviction relief will be DENIED WITHOUT PREJUDICE.*fn3

Accordingly, an appropriate judgment ...


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