Opinion
Case No. 6:05-cv-1603-Orl-19KRS (6:02-cr-142-Orl-19KRS).
February 16, 2006
ORDER
This case is before the Court on the Government's Motion to Stay (Doc. No. 11, filed January 25, 2006).
Petitioner initiated this case by filing a motion to vacate, set aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 1). However, as correctly noted by the Government, the Eleventh Circuit Court of Appeals is currently considering whether Petitioner's untimely notice of appeal from his conviction and sentence should be construed as a motion for extension of time to appeal because of excusable neglect or good cause. Pursuant to the remand of the appellate court, this Court entered an Order on January 19, 2006, finding that Petitioner had shown excusable neglect (Criminal Case 6:02-cr-142-Orl-19KRS, Doc. No. 99).
Under the circumstances, it appears to be inappropriate to have the present section 2255 motion before the Court while the matter concerning Petitioner's direct appeal remains pending. Cf. United States v. Khoury, 901 F.2d 975, 976 (11th Cir. 1990) (a defendant may not seek collateral relief while his direct appeal is pending). Certainly, if the appellate court allows Petitioner to pursue a direct appeal, the pending appeal would potentially render the present section 2255 motion unnecessary. Consequently, this case should be held in abeyance until the appellate court resolves whether Petitioner is entitled to an out-of-time appeal. In the event that the appellate court allows Petitioner to pursue an out-of-time appeal, then the dismissal of this case would be appropriate. In the event that the appellate court prevents Petitioner from pursuing an out-of-time appeal, then this case should be reopened.
Accordingly, it is ORDERED as follows:
1. The Government's Motion to Stay (Doc. No. 11, filed January 25, 2006) is GRANTED.
2. This case shall be held in abeyance until the appellate court resolves whether Petitioner is entitled to pursue an out-of-time appeal. The Clerk of the Court is directed to administratively close this case.
3. When the appellate court makes its ruling on whether Petitioner is entitled to pursue an out-of-time appeal, the parties shall immediately notify the Court in writing and file an appropriate motion either seeking to reopen or dismiss the case .
DONE AND ORDERED.