Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.united States of America, Plaintiff-appellee, v. Marcel Barnes, A/k/a Larry Kevin Brown, Defendant-appellant, 70 F.3d 113 (4th Cir. 1995)

Marcel Barnes received a life sentence upon his plea of guilty to conspiracy to distribute and to possess with intent to distribute cocaine, crack cocaine, heroin, and marijuana. Barnes timely noted an appeal of his sentence; that appeal is currently pending with the court. Barnes also filed a 28 U.S.C. § 2255 (1988) motion challenging his conviction and sentence. The district court denied the motion on the merits. Barnes now appeals that decision.

Absent extraordinary circumstances, courts traditionally decline to address Sec. 2255 motions on the merits during the pendency of a direct appeal. Bowen v. Johnston, 306 U.S. 19, 26-27 (1939); United States v. Robinson, 8 F.3d 398, 405 (7th Cir. 1993); United States v. Cook, 997 F.2d 1312, 1319 (10th Cir. 1994); United States v. Taylor, 648 F.2d 565, 572 (9th Cir.), cert. denied, 454 U.S. 866 (1981). The subject case does not present exceptional circumstances warranting deviation from that rule. We accordingly vacate the judgment of the district court. The case is remanded with directions that it be dismissed without prejudice to Barnes' right to refile a Sec. 2255 motion after disposition of his direct appeal.

As our review of the record and other materials before us reveals that argument would not significantly aid the decisional process, we dispense with oral argument.

VACATED AND REMANDED