United States District Court, E.D. Tennessee, Greeneville Division
J. RONNIE GREER, District Judge.
Federal inmate Emilio Beltran-Sanchez ("petitioner") brings this pro se motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255, (Doc. 17). Following his guilty plea, petitioner was convicted of one count of illegal presence by an alien in the United States, in violation of 8 U.S.C. § 1325(a). His judgment of conviction, fixing a 5-month (time served) sentence of imprisonment and a one-year term of supervised release, was entered on July 23, 2012, (Doc. 11).
On the same day as he filed this instant § 2255 motion, petitioner submitted a notice of appeal, (Doc. 16). The appeal is pending in the Sixth Circuit, but the United States has filed a motion to dismiss it based on an untimely filed notice of appeal, (Sixth Circuit Court of Appeals, see online at https://ecf.ca6.uscourts.gov/cmecf/servlet/ TransportRoom?servlet=CaseSummary.jsp&caseNum=14-5791&incOrigDkt=Y&incDkt Entries=Y (Internet materials as visited Oct. 10, 2014, and available in Clerk of Court's case file.)). Even so, it remains that petitioner's appeal is still pending in the Sixth Circuit.
A defendant who has a direct appeal pending may not maintain a 28 U.S.C. § 2255 action, absent extraordinary circumstances. Capaldi v. Pontesso , 135 F.3d 1122, 1123 (6th Cir.1998) (adopting the rule that, in the absence of extraordinary circumstances, a district court is precluded from considering a § 2255 application during the pendency of a direct appeal).
Petitioner has presented no extraordinary circumstances that would cause the Court to entertain this motion. Accordingly, petitioner's 28 U.S.C. § 2255 action will be DISMISSED without prejudice by separate order.
The Court FINDS, in view of the basis for the dismissal, that petitioner has failed to make a substantial showing of the denial of a constitutional right because jurists of reason would not debate the correctness of the procedural ruling disposing of this motion. Slack v. McDaniel , 529 U.S. 473, 484 (2000). Thus, ...