Opinion
EP-05-CA-0173-FM, EP-03-CR-2305-FM.
June 23, 2005
DISMISSAL ORDER
Before the Court is Petitioner Jose Servando Chavez-Delgado's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Motion to Vacate") [Docket no. 24], filed on May 9, 2005. Court records show that the Supreme Court of the United States granted Petitioner's petition for a writ of certiorari on May 5, 2005, two days before the District Clerk received Petitioner's Motion to Vacate. On June 7, 2005, the Supreme Court vacated the judgment previously entered by the Fifth Circuit Court of Appeals and remanded the case for reconsideration in light of United States v. Booker, 543 U.S. ___ (2005). See United States v. Chavez-Delgado, No. 04-50699 (5th Cir. reopened June 9, 2005).
The Fifth Circuit has long held that motions to vacate under 28 U.S.C. § 2255 are not entitled to consideration on the merits when the petitioner's direct appeal remains pending. See United States v. Zuniga-Salinas, 945 F.2d 1302, 1306 n. 1 (5th Cir. 1991) (district court correctly dismissed collateral attack on conviction pending the outcome of defendant's direct appeal); Fassler v. United States, 858 F.2d 1016, 1019 (5th Cir. 1988) (a criminal defendant may not collaterally attack his conviction until it has been affirmed on direct appeal); Jones v. United States, 453 F.2d 351, 352 (5th Cir. 1972) (a criminal defendant may not collaterally attack his conviction until it has been affirmed on direct appeal); United States v. Odiodio, 2002 U.S. Dist. LEXIS 3030, *3 n. 2 (N.D. Tex. 2002) (a district court may not adjudicate the merits of a section 2255 motion while a direct appeal is pending); United States v. Woodson, 1997 U.S. Dist. LEXIS 10549, *3 (E.D. Tex. 1997) (a criminal defendant may not collaterally attack his conviction until it has been affirmed on direct appeal). In view of the pending appeal before the Fifth Circuit Court of Appeals, the Court concludes that the instant Motion to Vacate is not entitled to consideration on the merits. Further, the Fifth Circuit's disposition of Petitioner's appeal could render the motion unnecessary.
For the foregoing reasons, the Court finds that Petitioner Jose Servando Chavez-Delgado's Motion to Vacate, Correct, or Set Aside Sentence pursuant to 28 U.S.C. § 2255 [Docket no. 24], filed on May 9, 2005, should be DISMISSED WITHOUT PREJUDICE pending the outcome of his direct appeal.
SO ORDERED.