Opinion
CR 04-463-TUC-DCB, CV 05-622-TUC-DCB.
November 4, 2005
ORDER
Pending before this Court is Petitioner's "Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ( 28 U.S.C. § 2255)." (document 48) On July 19, 2005, however, Petitioner filed his Notice of Appeal of his June 21, 2005, conviction and sentence. (document 40) That appeal remains pending with the Ninth Circuit.
When Petitioner filed his Notice of Appeal, he conferred jurisdiction on the Ninth Circuit and divested this Court "of its control over those aspects of the case involved in the appeal." United States v. Ortega-Lopez, 988 F.2d 70, 72 (9th Cir. 1993) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 401 (1982)) (internal quotations omitted). The aspect of Petitioner's case involved in the appeal is his sentence and whether some reduction is warranted. This is precisely the issue raised in Petitioner's Motion currently pending before this Court. Therefore, this Court lacks jurisdiction to consider Petitioner's Motion to Vacate. See Id.
Accordingly,
IT IS ORDERED that Petitioner's Motion to Vacate (CR 04-463, document 48) is DENIED. IT IS FURTHER ORDERED that civil case number CV 05-622 is DISMISSED without prejudice.