United States District Court, Southern District of Indiana, Indianapolis Division
May 14, 2015
LON CAMPBELL, Petitioner,
ENTRY DISMISSING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 WITHOUT PREJUDICE
TANYA WALTON PRATT, JUDGE United States District Court Southern District of Indiana.
Petitioner Lon Campbell has filed a motion for post-conviction relief under 28 U.S.C. § 2255. On January 21, 2015, Mr. Campbell pled guilty to and was sentenced for using a false Social Security Number. He appealed his conviction to the Seventh Circuit Court of Appeals. His appeal is pending.
The United States has moved to dismiss Mr. Campbell’s § 2255 motion. Absent extraordinary circumstances, the district court should not consider a § 2255 motion while a direct appeal is pending. United States v. Robinson, 8 F.3d 398 (7th Cir. 1993). Mr. Campbell has not alleged any extraordinary circumstances that require consideration of his § 2255 motion while his appeal is pending. Therefore, the motion to dismiss [dkt 4] is granted and Mr. Campbell’s 28 U.S.C. § 2255 motion is dismissed without prejudice because it is premature.
Because the motion is denied as premature and not on the merits, Mr. Campbell may file a new § 2255 motion after his appeal is decided. Such a motion would not be “second or successive” motion under 28 U.S.C. 2244(a). O’Connor v. United States, 133 F.3d 548, 694 (7th Cir. 1998) (when § 2255 petition is returned to petitioner on ground that no collateral attack could be begun while appeal pending, it does not count as petition; petitioner may file new motion after appeal decided without obtaining permission from the court of appeals).
A copy of the Entry and Judgment in this action shall be docketed in No. 1:07-cr-95-TWP-TAB-1.
IT IS SO ORDERED