Opinion
No.: 2:13-cv-325 No.: 2:11-cr-55(1)
03-06-2014
FRANKIE D. CRUM, BOP#44007-074, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Greer/Inman
MEMORANDUM
This is a pro se motion to vacate, set aside or correct sentence brought under 28 U.S.C § 2255, [Doc. 373]. Petitioner Frankie D. Crum was convicted, pursuant to his guilty plea, of violating 21 U.S.C. § 846 and § 841(b)(1) by conspiring to distribute and possess with intent to distribute controlled substances, to wit, cocaine (Count 1, superceding indictment); marijuana (Count 2, superceding indictment) and Oxycodone (Count 3, second superceding indictment), and also violating 18 U.S.C. § 1956 by money laundering (Count 4, superceding indictment). For these convictions, he was sentenced to a total sentence of 192 months' imprisonment.
All citations to the record refer to petitioner's criminal file.
Petitioner filed a direct appeal, which is presently pending before the United States Court of Appeals for the Sixth Circuit. See United States v. Frankie L. Crum, Docket No. 13-6292 (6th Cir. Notice of Appeal filed Sept. 27, 2013), available at https://ecf.ca6.uscourts.gov/cmecf/servlet/Tran sportRoom?servlet=CaseSummary.jsp &caseNum=13-6299&incOrigDkt=Y&incDktEntries=Y (last visited on March 4, 2014).
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. All claims offered in the motion relate to ineffective assistance of counsel, including one claim that Petitioner's attorney failed to file a notice of appeal. Obviously, the fact that the Sixth Circuit is currently considering Petitioner's direct appeal, albeit based on an untimely filed notice of appeal, counsels against finding the existence of an extraordinary circumstance. Be that as it may, the presentation of the other claims involving counsel's representation in a precipitous § 2255 motion does not constitute an exceptional circumstance.
Accordingly, Petitioner's § 2255 motion will be DISMISSED without prejudice.
Lastly, the Court finds 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, Petitioner will be DENIED issuance of a certificate of appealability. Rule 22(b) of the Federal Rules of Appellate Procedure.
A separate order will enter.
ENTER:
J. RONNIE GREER
UNITED STATES DISTRICT JUDGE