Opinion
Case No. 4:12CV00571 ERW
06-05-2012
WILLIAM J. MABIE, Movant, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
This matter is before me on movant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [ECF No. 1], movant's amended motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [ECF No. 5], and respondent's motion to dismiss [ECF No. 3].
Movant seeks relief from the conviction and sentence in United States v. Mabie, No. 4:09 CR 351 ERW (E.D. Mo. 2009), which was affirmed on direct appeal by the Court of Appeals for the Eighth Circuit. See United States v. Mabie, 663 F.3d 322 (8th Cir. 2011). However, movant filed a timely petition for certiorari in the Supreme Court, and the Supreme Court has called for a response, which is currently due on June 11, 2012. Consequently, movant's direct appeal is still pending. See United States v. Mabie, No. 11-9770 (U.S. April 6, 2012).
Because the direct appeal is pending, movant's § 2255 motion has been prematurely filed. See Masters v. Eide, 353 F.2d 517, 518 (8th Cir. 1965) (per curiam) ("[o]rdinarily resort cannot be had to 28 U.S.C.A. § 2255 or habeas corpus while an appeal from conviction is pending"). The Court finds no extraordinary circumstances that would allow movant to file his motion at this time. As a result, the Court will dismiss this action without prejudice to refiling after the criminal judgment becomes final.
Accordingly,
IT IS HEREBY ORDERED that respondent's motion to dismiss [ECF No. 3] is GRANTED .
IT IS FURTHER ORDERED that movant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [ECF No. 1] and amended motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [ECF No. 5] are DISMISSED without prejudice.
An Order of Dismissal will accompany this Order.
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E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE