Opinion
Criminal No. 2013-31
01-11-2018
UNITED STATES OF AMERICA, Plaintiff, v. JOELVIS ACOSTA LIZ, ISA NOEL, KIRSTEN ALEXANDER, EDISSON PEGUERO ORTIZ, Defendant.
ATTORNEYS: Gretchen Shappert, United States Attorney Meredith Jean Edwards, AUSA Office of the United States Attorney St. Thomas, U.S.V.I. For the United States of America, Omodare Jupiter, FPD Gabriel J. Villegas, AFPD Office of the Federal Public Defender St. Thomas, U.S.V.I. For Joelvis Acosta Liz, Carl R. Williams Smith, Williams, PLLC St. Thomas, U.S.V.I. For Isa Noel, David J. Cattie Ogletree, Deakins, Nash, Smoack & Stewart LLC St. Thomas, U.S.V.I. For Kirsten Alexander, Pedro K. Williams Law Office of Pedro K. Williams St. Thomas, U.S.V.I. For Edisson Peguero Ortiz.
ATTORNEYS:
Gretchen Shappert, United States Attorney
Meredith Jean Edwards, AUSA
Office of the United States Attorney
St. Thomas, U.S.V.I.
For the United States of America, Omodare Jupiter, FPD
Gabriel J. Villegas, AFPD
Office of the Federal Public Defender
St. Thomas, U.S.V.I.
For Joelvis Acosta Liz, Carl R. Williams
Smith, Williams, PLLC
St. Thomas, U.S.V.I.
For Isa Noel, David J. Cattie
Ogletree, Deakins, Nash, Smoack & Stewart LLC
St. Thomas, U.S.V.I.
For Kirsten Alexander, Pedro K. Williams
Law Office of Pedro K. Williams
St. Thomas, U.S.V.I.
For Edisson Peguero Ortiz. ORDER GÓMEZ, J.
Before the Court is the motion of Isa Noel ("Noel") for relief pursuant to 28 U.S.C. § 2255.
On June 19, 2013, the Grand Jury returned an indictment charging Noel with one count of Conspiracy to Possess with Intent to Distribute Cocaine in violation of 21 U.S.C. §§ 841 and 846; and two counts of Possession with Intent to Distribute Cocaine in violation of 21 U.S.C. § 841. On August 20, 2013, the Grand Jury returned a superseding indictment charging Noel with the same offenses.
In November, 2013, Noel was tried and convicted of each count with which he was charged. Noel was subsequently sentenced to 151 months imprisonment.
After he was sentenced, Noel--through counsel--filed a notice of appeal. He also filed a pro se motion for relief pursuant to 28 U.S.C. § 2255 (the "2255 petition"). Thereafter, Noel--through counsel--filed a motion in this Court for a new trial under Federal Rule of Civil Procedure 33. Noel subsequently filed a motion in the Third Circuit to remand his case to this Court for consideration of Noel's motion for a new trial. In an order dated April 25, 2016, the Third Circuit granted the motion to remand. The Third Circuit indicated that "[i]f the District Court denies the motion for a new trial [Noel] may file a motion to reopen this appeal." ECF No. 198, Exh. 1.
On August 5, 2016, the United States filed an opposition to Noel's motion for a new trial. On May 16, 2017, Noel filed his reply.
On July 28, 2017, the Court denied Noel's motion for a new trial. Noel has since reopened his appeal, which is currently pending at Docket Number 13-2042 in the Third Circuit.
With a pending appeal, Noel's judgment of conviction is not final under 28 U.S.C. § 2255. See, e.g., Kapral v. United States, 166 F.3d 565, 570 (3d Cir. 1999) ("[I]t is clear that 'final,' as used in § 2255, refers to the decision on direct review that 'precludes further controversy on the questions passed upon,' the one 'from which no appeal or writ of error can be taken.' We are persuaded that Congress intended this concept of finality to control petitions filed under § 2255's one-year limitations period."). Thus, the 2255 petition is premature and Noel must wait until the Third Circuit disposes of his direct appeal before pursuing any other available avenues for relief. See, e.g., Reynolds v. Martinez, 351 Fed. App'x 585, 586 (3d Cir. 2009) (finding that because petitioner was in the process of challenging the legality of his detention via direct appeal, and those claims were not yet resolved, his challenge to his conviction and sentence was premature); United States v. Walker, 330 Fed. App'x 335, 336 n.1 (3d Cir. 2009) (noting that the filing of a § 2255 motion would be premature while the direct appeal remains pending); Norman v. Levi, 305 Fed. App'x 820, 821 (3d Cir. 2009) (noting that a motion under § 2255 would be subject to dismissal as premature because it was filed prior to sentencing and direct appeal).
The premises considered, it is hereby
ORDERED that the 2255 petition docketed at ECF Number 176 is DENIED; and it is further
ORDERED that the Clerk of Court shall CLOSE Civil Case No. 3:14-94, the civil case associated with the 2255 petition.
S\_________
Curtis V. Gómez
District Judge