Aubrey Aeby, Petitioner, v. the Honorable Joe E. Estes, Chief Judge, United States District Court for the Northern District of Texas, Dallas Division, Respondent, 410 F.2d 762 (5th Cir. 1969)

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U.S. Court of Appeals for the Fifth Circuit - 410 F.2d 762 (5th Cir. 1969) April 24, 1969

Appeal from the United States District Court for the Northern District of Texas.

Aubrey Aeby, pro se.

Melvin Diggs, U. S. Atty., Dallas, Tex., for appellee.

Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.


Aeby has filed an application for a Writ of Mandamus to order the district court to act on his fourth filed motion to vacate sentence pursuant to 28 U.S.C. § 2255. At the time of filing that § 2255 motion, Aeby had pending in this court an appeal from the district court's order denying, without a hearing, his third § 2255 motion. It is for this reason that the district court has refrained from acting.

Since the date of filing his mandamus application, the court has issued its opinion on Aeby's § 2255 appeal. Aeby v. United States, 5 Cir. 1969, 409 F.2d 1 (1969). In light of that opinion, it becomes unnecessary to further consider the mandamus application. Accordingly, the application is dismissed without prejudice to Aeby to proceed as per the instructions contained in this court's opinion in No. 26363.