Heavener v. United States of America
| Regina Nancy Heavener |
| United States of America |
| 4:2018cv04175 |
| August 28, 2018 |
| US District Court for the Central District of Illinois |
| Sara Darrow |
| Prisoner: Vacate Sentence |
| 28 U.S.C. ยง 2254 |
| None |
Docket Report
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| Document Text |
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| Filing 3 JUDGMENT entered on 9/6/2018. (LN, ilcd) |
TEXT ORDER entered by Judge Sara Darrow on September 5, 2018. On August 28, 2018, Petitioner filed a #1 motion for relief pursuant to 28 U.S.C. 2255. On March 6, 2018, this Court sentenced Petitioner to 120 months of imprisonment, 5 years of supervised release, and a $400 special assessment. See [2-1] Judgment at 2-7. On March 20, 2018, Petitioner filed a notice of appeal. ECF No. 115 in Case No. 4:16-cr-40051-SLD-3. At present, Petitioner's direct appeal remains pending in the Seventh Circuit. See Case No. 18-1639. The most recent activity in that appeal is the Seventh Circuit's July 17, 2018 order suspending briefing in the appeal and directing Petitioner to respond to her attorney's Anders brief, in which he requested permission to withdraw from the case because the appeal is frivolous. See ECF No. 131 in Case No. 4:16-cr-40051-SLD-3. "The well established general rule is that, absent extraordinary circumstances, the district court should not consider 2255 motions while a direct appeal is pending." United States v. Robinson, 8 F.3d 398, 405 (7th Cir. 1993). "Whether extraordinary circumstances exist is a question the answer to which depends upon the balancing of the need for speedy relief against the need for conservation of judicial resources." United States v. Davis, 604 F.2d 474, 485 (7th Cir. 1979). This inquiry is left to the district court's discretion. Id. Petitioner has not alleged any extraordinary circumstances that would warrant consideration of her #1 motion while her direct appeal is pending. Accordingly, the #1 motion is DISMISSED without prejudice as premature. See Robinson, 8 F.3d at 405 (modifying the district court's order denying a 2255 motion as untimely because it was filed while the petitioner's direct appeal was pending "from denial to dismissal" of the 2255 motion). This dismissal will not affect Petitioner's ability to file another 2255 motion upon the disposition of her direct appeal because a 2255 motion that is dismissed without a decision on the merits does not count as an initial petition for the purpose of the restrictions on filing a second or successive motion. See O'Connor v. United States, 133 F.3d 548, 550 (7th Cir. 1998). The Clerk is directed to unseal the #1 motion, enter judgment, and close the case. (KML, ilcd)
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| Filing 2 Remark: Criminal Superseding Indictment and Judgment see criminal case number 16-40051. (Attachments: #1 Judgment) (ED, ilcd) |
| Filing 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Regina Nancy Heavener.(ED, ilcd) Modified on 8/28/2018 to seal for content (ED, ilcd). Modified on 9/6/2018 to unseal per 9/5/2018 text order (ED, ilcd). |
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| Respondent: United States of America | |
| Represented By: | Kevin C Knight |
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| Petitioner: Regina Nancy Heavener | |
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