Opinion
Civil Action No. CCB-09-363, (Related Crim. Case: CCB-07-64).
February 25, 2009
MEMORANDUM
The above-captioned Motion to Vacate was filed on February 17, 2009. (Docket entry No. 143.) Petitioner David Ellerby seeks to challenge his August 7, 2008 conviction of five counts of conspiracy to distribute and possess with intent to distribute a controlled dangerous substance. Petitioner was sentenced on November 14, 2008, and a notice of appeal was filed on November 20, 2008. (Docket entries No. 111 and 113.) The appeal is still pending with the Fourth Circuit Court of Appeals. See United States v. Ellerby, No. 80-5165 (4th Cir. 2008).
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. See Rules Governing § 2255 Proceedings, Rule 5, advisory committee note; see also United States v. Gordon, 634 F.2d 638, 638-39 (1st Cir. 1980); United States v. Davis, 604 F.2d 474, 484 (7th Cir. 1979).
Petitioner asserts that "the indictment for 26 U.S.C. § 7203, commonly identified as a charge of willful failure to file, is found to be without any claim the defendant had a statutory duty to the plaintiff and the defendant is therefore not charged with violating any legal requirement imposed by law." (Docket entry No. 143 at p. 1.) The basis for this assertion is unclear, as Ellerby was not charged with a violation of 26 U.S.C. § 7203. He also expresses disagreement with the notice given under 21 U.S.C. § 851 and with certain offenses used to enhance his sentence. These issues properly can be addressed on appeal. None of his arguments present the kind of extraordinary circumstance that warrants consideration during the pendency of petitioner's appeal. Accordingly, the motion shall be dismissed without prejudice by separate order which follows.