William R. Mattison, Petitioner-appellant, v. United States of America, Respondent-appellee, 947 F.2d 945 (6th Cir. 1991)Annotate this Case
Nov. 7, 1991
Before KEITH and RYAN, Circuit Judges, and TIMBERS, Senior Circuit Judge.*
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).
William Mattison filed a motion to vacate under 28 U.S.C. § 2255 in which he challenged the constitutionality of a conviction for mailing threatening communications, in violation of 18 U.S.C. § 876. The district court dismissed without prejudice the motion to vacate. This appeal followed. Mattison has filed a motion to remand this appeal to the district court.
Upon consideration, we find that the district court properly dismissed the motion to vacate. In the absence of extraordinary circumstances, a district court is without jurisdiction to entertain a motion to vacate during the pendency of the direct appeal of the underlying sentence. See, e.g., United States v. Wilson, 894 F.2d 1245, 1252 (11th Cir.), cert. denied, 110 S. Ct. 3284 (1990). There are no extraordinary circumstances present in this case.
Accordingly, the motion to remand is denied and the district court's judgment is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.
The Honorable William H. Timbers, Senior Circuit Judge, United States Court of Appeals for the Second Circuit, sitting by designation