UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
August 6, 2012
RICHARD A. MAIZE, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER GRANTING GOVERNMENT'S MOTION TO DISMISS 28 U.S.C. § 2255 MOTION WITHOUT PREJUDICE [Docket Nos. 7 (CV), 197 (CR); re: Nos. 1 (CV), 192 (CV)]
Presently before the court is the Government's Motion to Dismiss Without Prejudice, While Direct Appeal is Pending, Maize's Motion to Vacate Judgment and Pleas of Guilty Pursuant to 28 U.S.C. § 2255 ("Motion"). Having read the parties' moving papers, the court grants the Government's Motion and adopts the following Order.
The parties correctly note the applicable law. District courts typically "should not entertain a habeas corpus petition while there is an appeal pending." Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987). This "general rule of forebearance is not, however, a jurisdictional impediment." United States v. Taylor, 648 F.2d 565, 572 (9th Cir. 1981). A district court "may entertain a collateral motion during the pendency of a direct appeal if 'extraordinary circumstances' outweigh the considerations of administrative convenience and judicial economy." Id.
According to Maize, the extraordinary circumstance here is that his Motion to Vacate Judgment and Pleas of Guilty Pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion") is based on the same factual predicates as his direct appeal, such that if this court grants his § 2255 Motion it will moot the appeal. The court finds that this circumstance does not justify diverging from the general rule. As the Government notes, the parties have already completed briefing on Maize's appeal, and the appeal has been assigned to a merits panel. Further mitigating any concerns here, the court notes that Maize has been released on bond pending appeal.
For all of these reasons, the court GRANTS the Government's Motion and dismisses Maize's § 2255 Motion without prejudice to his refiling after the conclusion of his direct appeal.
IT IS SO ORDERED.
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