United States of America, Plaintiff-appellee, v. Ramon Angel Caro, Defendant-appellant, 990 F.2d 1261 (9th Cir. 1993)

MEMORANDUM^** 

Ramon Angel Caro, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate his sentence. Caro pleaded guilty to possession with intent to distribute cocaine. We have jurisdiction under 28 U.S.C. § 2255, and we reverse.

A defendant in a federal criminal prosecution is not entitled to have "a direct appeal and a section 2255 proceeding considered simultaneously in an effort to overturn the conviction and sentence." Jack v. United States, 435 F.2d 317, 318 (9th Cir. 1970), cert. denied, 402 U.S. 933 (1971). The reason that a district court should not entertain a habeas petition while a direct appeal is pending is that the disposition of the direct criminal appeal may render the habeas petition unnecessary. Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987).

Here, Caro appealed his conviction, following a guilty plea, for possession with intent to distribute cocaine (No. 89-50311). While his direct appeal was pending, Caro filed a 28 U.S.C. § 2255 motion to vacate his sentence. In his motion, Caro argued that (1) his guilty plea was rendered involuntary by the ineffective representation of counsel, and (2) he was entrapped by government agents. The district court denied the motion.

The district court did not have authority to rule on Caro's section 2255 motion while his direct appeal was still pending. See Feldman, 815 F.2d at 1321. We vacate the decision of the district court.

VACATED.