Terry James Kohl, Plaintiff-appellant, v. United States of America Defendant-appellee, 990 F.2d 1258 (9th Cir. 1993)

MEMORANDUM^** 

Kohl had been involved in cocaine trafficking, and was indicted for conspiracy to distribute 500 grams or more of cocaine. 21 U.S.C. §§ 846, 841(a). He acquiesced to a plea agreement whereby the government would recommend a downward departure. The judge departed downward and imposed a sentence of 120 months.

Kohl then filed a pro se motion, pursuant to an obsolete version of Fed.R.Crim.P 35(a), for correction of his sentence. The District Court construed this as a motion for collateral relief under 28 U.S.C. § 2255, and denied relief. Kohl appealed this denial. While his appeal was pending, Kohl filed a second pro se motion for 28 U.S.C. § 2255 relief. The District Court denied this second 28 § U.S.C 2255 motion, and he appeals. After the district court denied his second petition, a panel from this court issued an opinion upholding the denial of his first.

This court has ruled that a § 2255 petition filed while a direct appeal is pending will be denied, because the " 'disposition of the appeal may render the [2255 motion] unnecessary' " Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987) ( quoting Black v. United States, 269 F.2d 38, 41 (9th Cir. 1959), cert. denied, 361 U.S. 938 (1960)).

There is no reason why this rule should not apply where the first appeal is from a § 2255 petition. The disposition of the appeal of a § 2255 petition, like the disposition of a direct appeal, has the potential to render the second § 2255 petition unnecessary. At the time the second petition was dismissed, the district judge could not know how the appeal from the dismissal of the first petition would be resolved. Since his petition was properly dismissed because of the pendency of his appeal, we do not reach Kohl's substantive arguments, although we do note that many of them have already been decided by this court in United States v. Kohl, 972 F.2d 294 (9th Cir. 1992).

AFFIRMED.