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United States v. Tadios

United States District Court, District of Montana, Great Falls Division

October 23, 2014

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
FAWN PATRICIA ANN TADIOS, Defendant/Movant.

ORDER DISMISSING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

Brian M. Morris United States District Court

On October 21, 2014, Defendant/Movant Fawn Patricia Ann Tadios filed a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255, along with a 18-page brief in support. Tadios is a federal prisoner proceeding pro se.

Following a jury trial, Tadios was convicted of two counts of theft of tribal funds and one count of theft from a health care facility. On the day after she filed the § 2255 motion, Tadios was sentenced to serve 12 months and one day in prison, to be followed by a two-year term of supervised release. Judgment (Doc. 193) at 2-3. Her time to appeal the criminal judgment will not expire until November 5, 2014.

A § 2255 motion is the equivalent of a petition for writ of habeas corpus. E.g., United States v. Hayman, 342 U.S. 205, 210-19 (1952). “Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.” Bousley v. United States, 523 U.S. 614, 621 (1998) (quoting Reed v. Farley, 512 U.S. 339, 354 (1994), and Sunal v. Large, 332 U.S. 174, 178 (1947)). Consequently, district courts do not consider § 2255 motions before a conviction becomes final. E.g., Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987) (as amended); United States v. Deeb, 944 F.2d 545, 548 (9th Cir. 1991); Rule 5, Rules Governing § 2255 Proceedings for the United States District Courts, advisory committee’s note (quoting Womack v. United States, 395 F.2d 630, 631 (D.C. Cir. 1968)).

This Court, therefore, will not entertain a § 2255 motion unless and until Tadios’s direct appeal is exhausted. No action will be taken on any further § 2255 motions submitted by Tadios before her conviction becomes final by the conclusion of all proceedings on appeal, including any petition for writ of certiorari to the United States Supreme Court. See Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987). When it is the appropriate time to file a § 2255 motion, Tadios will be required to assert in one motion all claims for relief she wishes the Court to consider. See generally 28 U.S.C. §§ 2255(h), 2244(b).

This law is well-settled. A certificate of appealability is not warranted. Gonzalez v. Thaler, __U.S. __, 132 S.Ct. 641, 648 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Accordingly, IT IS HEREBY ORDERED as follows:

1. Tadios’s § 2255 motion (Doc. 196) is DISMISSED as premature. No action will be taken on it.

2. A certificate of appealability is DENIED. The Clerk of Court shall immediately process the appeal if Tadios files a Notice of Appeal of this Order.

3. The Clerk of Court shall ensure that all pending motions in this case and in CV 14-77-GF-BMM are terminated and shall close the civil file by entering a judgment of dismissal.


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