UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
December 27, 2007
RAFAEL SANTANA, MOVANT,
UNITED STATES, RESPONDENT.
The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DISMISSING § 2255 MOTION
In an order filed on October 30, 2007, the Court ordered the parties to brief the issue of whether the Court had jurisdiction over Rafael Santana's § 2255 motion in light of his pending appeal before the Ninth Circuit Court of Appeals. In response the Court's order, the Government filed a motion to dismiss, arguing that the Court should refrain from ruling on the § 2255 motion pending the appeal. Santana did not file a response to the Court's order.
In United States v. Taylor, 648 F.2d 565, 572 (9th Cir. 1981), the Ninth Circuit explained that generally, the filing of an appeal severely restricts the filing of a collateral claim with the district court, "to avoid any anomaly associated with the simultaneous consideration of the same case by two courts." Although the general rule of forbearance is not a jurisdictional impediment, the district court may entertain a collateral motion during the pendency of a direct appeal only if "'extraordinary circumstances' outweigh the considerations of administrative convenience and judicial economy." Id. at 572.
Santana has not shown that there are extraordinary circumstances warranting dual proceedings. Therefore, the Court GRANTS the Government's motion to dismiss and DISMISSES the § 2255 motion without prejudice.
IT IS SO ORDERED.
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