Unpublished Disposition, 896 F.2d 555 (9th Cir. 1989)

MEMORANDUM^* 

Richard Paul Hodge pled guilty to charges of mail fraud, under 18 U.S.C. § 1341 (1988), and obtaining federal student grants and loans by fraud, under 20 U.S.C. § 1097(a) (1982). He subsequently was convicted of and sentenced for these crimes, and now seeks reversal on direct appeal.

Appellant Hodge was convicted and sentenced on November 18, 1988. On December 7, 1988, he filed a pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (1982), claiming that he pled guilty involuntarily due to ineffective assistance from his counsel. On December 12, 1988, he filed a notice of appeal from the judgment and sentence. On January 19, 1989, the district court denied the pro se section 2255 motion without prejudice, declining to hold an evidentiary hearing on the ground that Hodge could not maintain a collateral motion while a direct appeal of his conviction was pending. Hodge did not file a notice of appeal from the district court's denial of his section 2255 motion. Nevertheless, in his brief for the present direct appeal, appellant's attorney writes that " [t]his is in essence an appeal of the district court's denial of the defendant-appellant's motion under Title 28 U.S.C. Section 2255."

Appellant appears to be confused about the proper scope of his current appeal. He seeks to have this court rule that the district court erroneously denied him relief under section 2255. Yet this court simply lacks jurisdiction to decide the issue: appellant never filed a notice of appeal from the district court's denial of section 2255 relief, as required by the Federal Rules of Appellate Procedure. Fed. R. App. P. 3(a). " [T]he filing of a timely notice of appeal is 'mandatory and jurisdictional.' " Crystal Palace Gambling Hall, Inc. v. Mark Twain Indus., Inc., 817 F.2d 1361, 1363 (9th Cir. 1987) (quoting United States v. Robinson, 361 U.S. 220, 224 (1960)).

Moreover, even had appellant filed a timely notice of appeal from the denial of section 2255 relief below, this court would almost certainly have affirmed the district court's order. According to this circuit's prevailing standard, " [e]xcept under most unusual circumstances ... no defendant in a federal criminal prosecution is 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) (per curiam), cert. denied, 402 U.S. 933 (1971); see also Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.), cert. denied, 109 S. Ct. 533 (1988). This rule counsels that, absent exceptional circumstances, district courts refrain from hearing the section 2255 motions of appellants whose direct appeals of their convictions are still pending. See Nemec v. United States, 184 F.2d 355 (9th Cir. 1950); United States v. Kobey, 109 F. Supp. 687 (S.D. Cal. 1952); cf. Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987) (stating that " [a] district court should not entertain a habeas corpus petition while there is an appeal pending in this court or in the Supreme Court"); United States v. Taylor, 648 F.2d 565, 572 (9th Cir.) ("Generally, the noting of [a direct] appeal severely restricts the filing of a collateral claim with the district court, to avoid any anomaly associated with the simultaneous consideration of the same case by two courts."), cert. denied, 454 U.S. 866 (1981). The present case does not involve circumstances exceptional enough to compel a district court to hear a section 2255 motion even though a direct appeal was still pending. Assuming he does not petition the Supreme Court for certiorari, appellant can make a new section 2255 motion at the expiration of the present direct appeal.

AFFIRMED.