Opinion
CRIMINAL ACTION NO. H-09-0339.
June 11, 2010
ORDER
Jose Luis Rodriguez Martinez was sentenced in November 2009 based on his guilty plea to the charge of illegal reentry after deportation. He has filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Rodriguez Martinez also has a pending appeal from his conviction and sentence. That appeal, USCA No. 09-20779, is pending before the United States Court of Appeals for the Fifth Circuit.
"[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, 109 S.Ct. 2450, 104 L.Ed.2d 1004 (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. As the Fifth Circuit noted in Welsh v. United States: "A motion to vacate under 28 U.S.C. § 2255 will not be entertained during the pendency of a direct appeal, in as much as the disposition of the appeal may render the motion moot." 404 F.2d 333, 333 (5th Cir. 1968), abrogated on other grounds, United States v. Ortega, 859 F.2d 327, 334 (5th Cir. 1988).
This motion under § 2255 is dismissed, without prejudice.