September 3, 2013
UNITED STATES OF AMERICA, Plaintiff/Respondent,
DARRELL GIBSON, Defendant/Movant.
ROBERT E. WIER, Magistrate Judge.
Defendant/Movant Darrell Gibson filed a Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody. DE #355 (Motion). Gibson challenges the District Court's June 12, 2013 judgment revoking his supervised release. Id .; see DE #347. On June 19, 2013, however, Gibson directly appealed the same judgment to the United States Court of Appeals for the Sixth Circuit. See DE #350; DE #354. The record reflects that the direct appeal remains pending.
In Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998), the Sixth Circuit adopted the rule, already espoused by multiple Circuits, that "in the absence of extraordinary circumstances, a district court is precluded from considering a § 2255 application for relief during the pendency of the applicant's direct appeal." See id. (citing cases from other Circuits). The Capaldi Court explained, "An application under § 2255 is an extraordinary remedy and should not be considered a substitute for direct appeal." Id. (citation omitted). Further, "determination of the direct appeal may render collateral attack by way of a § 2255 application unnecessary." Id. Here, Gibson's motion does not present extraordinary circumstances that warrant consideration of the § 2255 motion while the direct appeal is pending. Thus, Gibson's motion is premature, and the Court RECOMMENDS that the District Judge DENY Gibson's motion (DE #355) WITHOUT PREJUDICE to Gibson filing a § 2255 motion challenging the June 12 revocation judgment once his direct appeal has concluded. Because the Court does not reach the merits of Gibson's motion, any new or renewed § 2255 motion filed after the conclusion of the Sixth Circuit's review would not (at least as to this filing) be subject to the statutory restrictions on second or successive petitions. See Rosales-Garcia v. Holland, 322 F.3d 386, 398 (6th Cir. 2003) ("A successive petition' raises grounds identical to those raised and rejected on the merits on a prior petition.") (emphasis added) (quoting Schlup v. Delo, 115 S.Ct. 851, 863 n. 34 (1995)); 28 U.S.C. § 2255(h).
The Court directs the parties to 28 U.S.C. § 636(b)(1) for appeal rights and mechanics concerning this Recommended Disposition, issued under subsection (B) of the statute. See also Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 8(b). Within fourteen days after being served with a copy of this decision, any party may serve and file specific written objections to any or all findings or recommendations for determination, de novo, by the District Court. Failure to make a timely objection consistent with the statute and rule may, and usually does, result in waiver of further appeal to or review by the District Court and Court of Appeals. See United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981); Thomas v. Arn, 106 S.Ct. 466 (1985).