Opinion
CRIMINAL NO. H-12-600-2
07-28-2015
UNITED STATES OF AMERICA v. ERNEST GIBSON IV.
ORDER
The defendant, Earnest Gibson IV, filed a motion to vacate his sentence under 28 U.S.C. § 2255. (Docket Entry No. 546). Gibson has appealed his conviction and sentence to the Fifth Circuit. (Docket Entry No. 504). That appeal is pending.
"[A] criminal defendant may not collaterally attack his conviction until it has been affirmed on direct appeal." Fassler v. United States, 858 F.2d 1016, 1019 (5th Cir. 1988), cert. denied, 490 U.S. 1099 (1989) (citing Jones v. United States, 453 F.2d 351, 352 (5th Cir. 1972)). Where, as here, a defendant seeks § 2255 relief while a direct appeal is pending, the district court should decline to address the motion. See, e.g., Canales v. United States, No. 3-07-CV-0078-L, 2007 WL 646189 at *1 (N.D. Tex. Feb. 28, 2007) (a defendant may not seek post-conviction relief while his direct appeal is pending); United States v. Norwood, No. 7-06-CV-187-R, 2006 WL 3350207 at *1 (N.D. Tex. Nov. 15, 2006) (dismissing § 2255 motion as "premature" because a direct appeal was pending).
Gibson's motion to vacate under 28 U.S.C. § 2255 is denied, without prejudice to reurge after the Fifth Circuit has resolved his appeal. (No. 4:12-cr-600-2, Docket Entry No. 546; No. 4:15- cv-2138, Docket Entry No. 1). Final judgment dismissing Gibson's civil action, No. 4:15-cv-2138, is separately entered.
SIGNED on July 28, 2015, at Houston, Texas.
/s/_________
Lee H. Rosenthal
United States District Judge