Serrano-Arauz v. U.S.

Full title: SERRANO-ARAUZ, Plaintiff, v. UNITED STATES OF AMERICA, Defendant

Court: United States District Court, M.D. Florida, Tampa Division

Date published: Dec 4, 2006

CASE NO: 8:06-cv-2233-T-26TGW (M.D. Fla. Dec. 4, 2006)

Opinion

CASE NO: 8:06-cv-2233-T-26TGW.

December 4, 2006

ORDER

RICHARD LAZZARA, District Judge

Plaintiff has filed a Motion to Vacate pursuant to 28 U.S.C. § 2255. The Court notes, however, that Plaintiff filed a direct appeal from his sentence in the underlying criminal case and that his appeal is still pending before the Eleventh Circuit Court of Appeals.¹ Given that circumstance, this Court is precluded from entertaining Plaintiff's motion to vacate. See United States v. Wilson, 894 F. 2d 1245, 1252 (11^th Cir. 1990) (restating rule of the Eleventh Circuit that "[a] motion to vacate under 28 U.S.C. § 2255 will not be entertained during the pendency of a direct appeal, inasmuch as the disposition of the appeal may render the motion moot.") (quoting Welsh v. United States, 404 F. 2d 333 (5^th Cir. 1968)).

1 See case number 8:05-cr-194-T-26TGW, docket 84.

Accordingly, it is ordered and adjudged as follows:

1) The Motion to Vacate (Dkt. 1) is dismissed without prejudice.

2) The Clerk is directed to enter judgment for Defendant and to close this case

DONE AND ORDERED