Opinion

Brown v. United States

Court
District Court, E.D. Missouri
Filed
Jun 24, 2022
Cited by
0 cases
Authority
More cited than 24.2%

The opinion

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ELLIS CARROLL BROWN, III, )

)

Movant, )

)

v. ) No. 4:22-cv-00654-AGF

)

UNITED STATES OF AMERICA, )

)

Respondent. )

MEMORANDUM AND ORDER

This matter is before the Court on movant’s motion to vacate, set aside, or correct sentence

pursuant to 28 U.S.C. § 2255. For the following reasons, movant’s motion will be dismissed

without prejudice as premature.

Movant has filed his § 2255 habeas motion while his underlying criminal appeal is pending.

“Ordinarily resort cannot be had to 28 U.S.C. § 2255 or habeas corpus while an appeal from

conviction is pending.” Masters v. Eide, 353 F.2d 517, 518 (8th Cir. 1965). An exception to this

rule exists for “extraordinary circumstances.” Adv. Comm. Notes to Rule 5 of the Rules Governing

§ 2255 Proceedings. “Whether extraordinary circumstances exist is a question the answer to which

depends upon 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).

Movant is challenging his criminal conviction for deprivation of rights under color of law.

See United States v. Brown, III, No. 4:20-cr-380-AGF (E.D. Mo.). On November 22, 2021, the

Court sentenced movant to 72 months of imprisonment. On December 6, 2021, movant appealed

his conviction to the Eighth Circuit Court of Appeals. See United States v. Brown, No. 21-3807

(8th Cir. filed Dec. 6, 2021). Movant’s appeal is still pending. Movant has not demonstrated any

need for speedy relief. As a result, his habeas motion is dismissed without prejudice pending the

resolution of the appellate proceedings.

IT IS HEREBY ORDERED that movant’s motion to vacate, set aside, or correct

sentence is DISMISSED without prejudice.

An Order of Dismissal will accompany this Memorandum and Order.

Dated this 24th day of June 2022.

AUDREY G. FH ( \

UNITED STATES DISTRICT JUDGE

_2-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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