Opinion
Joan F. Kessler, U. S. Atty., Lawrence O. Anderson, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff.
Julian & Associates by Sarah Furey Crandall, Madison, Wis., for defendant.
DECISION and ORDER
MYRON L. GORDON, District Judge.
The defendant, Willie L. Davis, has petitioned the court pursuant to 28 U.S.C. s 2255 to vacate his sentence. Mr. Davis' direct appeal of his conviction is presently pending before the court of appeals for the seventh circuit.
In the absence of extraordinary circumstances, a motion under s 2255 is not proper while an appeal from the conviction is pending since disposition of the appeal may make the motion unnecessary. Welsh v. United States, 404 F.2d 333 (5th Cir. 1968); Womack v. United States, 129 U.S.App.D.C. 407, 395 F.2d 630 (1968); Masters v. Eide, 353 F.2d 517 (8th Cir. 1965); Black v. United States, 269 F.2d 38 (9th Cir. 1959), cert. denied, 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357 (1960). I do not believe that the circumstances of this case are so extraordinary that they require this court to entertain the instant petition during the pendency of Mr. Davis' appeal. Three of the grounds on which Mr. Davis' petition is based concern his contention that he was unconstitutionally denied his right to counsel. I have already considered that claim in my decision and order dated October 30, 1978.
Given the absence of extraordinary circumstances in this case and the pendency of Mr. Davis' appeal, his petition for relief under s 2255 will be dismissed.
Therefore, IT IS ORDERED that the petition of Willie L. Davis for relief pursuant to 28 U.S.C. s 2255 be and hereby is dismissed.