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Campbell v. USA

United States District Court, Southern District of Indiana, Indianapolis Division

May 14, 2015

LON CAMPBELL, Petitioner,
v.
USA, Respondent.

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


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