Moore v. United States

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 UNITED STATES OF AMERICA, Case Nos. 21-cr-02909-BAS-4 11 23-cv-00789-BAS Plaintiff, 12 ORDER ADMINISTRATIVELY 13 v. TERMINATING MOTION TO VACATE UNDER 28 U.S.C. § 2255 14 CARL MOORE, PENDING RESOLUTION OF 15 Defendant. APPEAL (ECF No. 250)

16 17 On December 15, 2022, Mr. Moore pled guilty to one count of RICO 18 conspiracy and two counts of Hobbs Act robberies. (ECF Nos. 184, 190.) As part 19 of the plea agreement, the parties agreed to the calculation of the sentencing 20 guidelines. (Plea Agreement, § XA, ECF No. 186.) Furthermore, the Government 21 agreed to recommend a sentence in the guideline range, and the defense agreed to 22 recommend a sentence of no less than 60 months. (Id. § XF.) 23 In exchange for the Government’s concessions in the plea agreement, Mr. 24 Moore waived his right to appeal and collaterally attack his conviction. (Id. § XI.) 25 “The only exception is defendant may collaterally attack the conviction or sentence 26 on the basis that Defendant received ineffective assistance of counsel.” (Id.) 27 The Court adopted the parties’ joint calculation of the guideline range and 1 Court sentenced Mr. Moore to 105 months within that guideline range. (ECF No. 2 242.) 3 Despite his waiver of appeal, Mr. Moore immediately appealed. (ECF No. 4 244.) While that appeal is pending, Mr. Moore now moves to vacate his conviction 5 pursuant to 28 U.S.C. § 2255. His two stated grounds for his Motion to Vacate, 6 without further elucidation, are: (1) “bias judgement, misconduct of Judge,” and (2) 7 “conflict of interest.” (ECF No. 244.) 8 Generally, the filing of a direct appeal “severely restricts the filing of a 9 collateral claim with the District Court, to avoid any anomaly associated with the 10 simultaneous consideration of the same case by two courts.” United States v. Taylor, 11 648 F.2d 565, 572 (9th Cir. 1981); see also United States v. Deeb, 944 F.2d 545, 548 12 (9th Cir. 1991) (holding court did not err in denying without prejudice § 2255 motion 13 pending resolution of direct appeal). The reason for this rule is that “the disposition 14 of the direct appeal may render the motion moot.” Taylor, 648 F.2d at 572 (citing 15 Black v. United States, 269 F.2d 38, 41 (9th Cir. 1959)). The exception is when 16 “‘extraordinary circumstances’ outweigh the considerations of administrative 17 convenience and judicial economy.” Id. (collecting cases); accord Jack v. United 18 States, 435 F.2d 317, 318 (9th Cir. 1970) (per curiam) (“Except under most unusual 19 circumstances, . . . no defendant in a federal criminal prosecution is entitled to have 20 a direct appeal and a section 2255 proceeding considered simultaneously in an effort 21 to overturn the conviction and sentence.”). 22 The record here suggests no extraordinary or unusual circumstances, and 23 considerations of administrative convenience and judicial economy weigh strongly 24 in favor of awaiting resolution of Mr. Moore’s direct appeal before addressing any 25 collateral challenges. Therefore, the Court TERMINATES Mr. Moore’s Motion to 26 Vacate pending resolution of his appeal (ECF No. 250). See Deeb, 944 F.2d at 548. 27 After the Ninth Circuit issues its mandate, the Motion may be reinstated upon 1 Further, the Court declines to issue a certificate of appealability. An appeal 2 || would not raise debatable questions about whether the Court’s procedural ruling is 3 |lcorrect. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 28 U.S.C. § 4 || 2253(c)(2); Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012). 5 Further, the Clerk of Clerk shall administratively close the companion civil 6 || case—No. 23-cv-0789-BAS. 7 IT IS SO ORDERED. 8 A. 9 || DATED: May 8, 2023 asf dg 5 Hipha. 6 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28