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United States v. Howard

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


January 15, 2008

UNITED STATES OF AMERICA
v.
ROBERT RAYMOND HOWARD, SR.,

The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

ORDER

AND NOW, this 15th day of January, 2008, upon consideration of defendant's motion (Doc. 89) to vacate the sentence imposed by this court on December 14, 2007, see 28 U.S.C. § 2255 ("A prisoner in custody under sentence of a [federal] court . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence."), and defendant's motions for an evidentiary hearing (Doc. 91) and for appointment of counsel for his § 2255 motion (Doc. 90), and it appearing that the above-captioned action is currently on direct appeal to the United States Court of Appeals for the Third Circuit,*fn1 see Kapral v. United States, 166 F.3d 565, 570 (3d Cir. 1999) ("[A] collateral attack [under § 2255] is generally inappropriate if the possibility of further direct review remains open: A district court should not entertain a habeas corpus petition while there is an appeal pending in [the court of appeals] or in the Supreme Court."); see also United States v. Ford, 215 F. App'x 167, 168 (3d Cir. 2007) (affirming the district court's dismissal of a § 2255 motion as premature while the defendant's direct appeal was pending); Kline v. United States, No. 04CR269, 2006 WL 680842 (M.D. Pa. Mar. 14, 2006), and the court finding that no "extraordinary circumstances" warrant consideration of the instant motion while defendant's direct appeal is pending, see id. ("While a direct appeal is pending, a District Court may consider a § 2255 motion only in 'extraordinary circumstances.'"), it is hereby ORDERED that:

1. The motion to vacate (Doc. 89) is DISMISSED as premature without prejudice to defendant's right to file a timely*fn2 § 2255 motion after his conviction has become final following appeal. If defendant is unsuccessful on direct appeal and then files a new, timely § 2255 motion, that motion will not be considered a second or successive § 2255 motion.

2. The motions (Docs. 90, 91) for appointment of counsel for his § 2255 motion and for an evidentiary hearing are DENIED as moot.


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