Opinion
Cause No. CR 02-52-GF-DLC Cause No. CV 19-91-GF-DLC
01-06-2020
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. VICTOR FOURSTAR, JR., Defendant/Movant.
ORDER DISMISSING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
On December 27, 2019, Defendant Fourstar filed a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 (Doc. 324). He challenges the revocation of his supervised release on August 22, 2019, arguing that he received ineffective assistance of counsel. See Mot. § 2255 (Doc. 324) at 4-5. An appeal of the revocation is pending. See United States v. Fourstar, No. 19-30200 (9th Cir. filed Aug. 29, 2019).
A § 2255 motion is the equivalent of a petition for writ of habeas corpus. See, e.g., United States v. Hayman, 342 U.S. 205, 210-19 (1952). "Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal." Bousley v. United States, 523 U.S. 614, 621 (1998) (quoting Reed v. Farley, 512 U.S. 339, 354 (1994), and Sunal v. Large, 332 U.S. 174, 178 (1947)). For that reason, district courts do not consider § 2255 motions before the challenged judgment is final, see, e.g., Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987) (as amended); United States v. Deeb, 944 F.2d 545, 548 (9th Cir. 1991); Rule 5, Rules Governing § 2255 Proceedings for the United States District Courts, advisory committee's note (quoting Womack v. United States, 395 F.2d 630, 631 (D.C. Cir. 1968)), including a ruling on any petition for writ of certiorari to the United States Supreme Court, see Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987).
This law is well-settled. A certificate of appealability is not warranted. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Accordingly, IT IS ORDERED:
1. Fourstar's motion under 28 U.S.C. § 2255 (Doc. 324) is DISMISSED.
2. A certificate of appealability is DENIED. The Clerk of Court shall immediately process the appeal if Fourstar files a Notice of Appeal.
3. The Clerk of Court shall ensure that all pending motions in this case and in CV 19-91-GF-DLC re terminated and shall close the civil file by entering judgment of dismissal.
DATED this 6th day of January, 2020.
/s/_________
Dana L. Christensen, Chief Judge
United States District Court