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United States v. Descamps, Not Reported in Fed. Supp., 2016 WL 5843002

Facts

Defendant was convicted under 18 U.S.C. § 922(g)(1) and was resentenced on March 24, 2014. Following his appeal, the Ninth Circuit granted a remand for resentencing, which occurred on November 18, 2015. Defendant subsequently filed a motion to vacate his sentence under 28 U.S.C. § 2255, which was his fourth such motion in this case, but it was determined to be premature as it was filed before the appeal was resolved.

On March 31, 2014, Defendant appealed his March 24, 2014, sentence to the Ninth Circuit Court of Appeals. ECF No. 587. On July 27, 2015, Defendant filed with this Court a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 on multiple grounds, ECF No. 610, currently pending.

Issue

Whether Defendant's motion to vacate his sentence under 28 U.S.C. § 2255 was premature and whether it should be dismissed as moot due to the overturning of the underlying sentence.

No defendant in a federal criminal prosecution is entitled to have a direct appeal and a 28 U.S.C. § 2255 motion considered simultaneously, except in extraordinary situations.

Rule

No defendant in a federal criminal prosecution is entitled to have a direct appeal and a 28 U.S.C. § 2255 motion considered simultaneously, except in extraordinary situations.

Here, Defendant's filing of the 28 U.S.C. § 2255 motion, ECF No. 610, prior to a determination on his appeal was premature.

Analysis

The court applied the rule that a 28 U.S.C. § 2255 motion filed before the resolution of an appeal is premature. Since the Ninth Circuit had remanded the case for resentencing and the original sentence was overturned, the court found that the allegations in Defendant's motion were moot, leading to the dismissal of the motion without prejudice.

As such, the Court views this dismissal of Defendant's motion, ECF No. 610, as moot analogous to the dismissal as premature addressed in Stewart.

Conclusion

The court denied Defendant's motion to vacate his sentence as moot and dismissed it without prejudice. Additionally, the court denied his motion for appointment of counsel and authorization to file a successive motion as moot.

Accordingly, IT IS ORDERED that: 1. Defendant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 , ECF No. 610, is DENIED as moot and dismissed without prejudice.

Who won?

The United States prevailed in this case as the court dismissed Defendant's motions as moot, indicating that the legal grounds for his claims were no longer valid due to the overturning of his sentence.

The Court notes that Defendant's July 27, 2015, 28 U.S.C. § 2255 motion, ECF No. 610, was his fourth 28 U.S.C. § 2255 motion brought in this case.

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