Anthony Gray, Petitioner-appellant, v. United States of America, Respondent-appellee, 82 F.3d 418 (6th Cir. 1996)

Before: NORRIS and SUHRHEINRICH, Circuit Judges, and WELLS, District Judge.^* 

ORDER

Anthony Gray appeals a district court order denying his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. The 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).

In 1994, a jury convicted Gray of conspiring to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a) (1) and 846 and using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). The district court sentenced Gray to 15 years of imprisonment Gray's direct criminal appeal is currently pending before this court.

While his direct criminal appeal was pending, Gray filed his motion to vacate sentence, alleging that his conviction violated the Double Jeopardy Clause. The district court concluded that, since Gray's direct criminal appeal was still pending, the court was precluded from considering his § 2255 motion and the court denied the motion as premature. Gray has filed a timely appeal.

Upon review, we conclude that the district court properly denied Gray's motion to vacate sentence as premature. Absent extraordinary circumstances, a district court is normally precluded from considering a § 2255 motion while review of a defendant's direct criminal appeal is pending. United States v. Leggett, Nos. 92-4269, etc., 1994 WL 171441, at * 2 (6th Cir. May 5, 1994) (unpublished per curiam); United States v. Gordon, 634 F.2d 638, 638-39 (1st Cir. 1980); United States v. Davis, 604 F.2d 474, 484 (7th Cir. 1979). Gray's motion is premature because his direct criminal appeal is still pending. Gray has not alleged any extraordinary circumstances warranting review of his motion to vacate nor are any such circumstances apparent from the record.

Accordingly, we affirm the district court's judgment. Rule 9(b) (3), Rules of the Sixth Circuit.