                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-6-2007

USA v. Ford
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5039




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"USA v. Ford" (2007). 2007 Decisions. Paper 1667.
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CLD-114                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       NO. 06-5039
                                    ________________

                            UNITED STATES OF AMERICA

                                               v.

                                     KELVIN FORD

                       ____________________________________

                     On Appeal From the United States District Court
                               For the District of New Jersey
                               (D.C. Crim. No. 04-cr-00562)
                      District Judge: Honorable Jerome B. Simandle
                     _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                               February 1, 2007

                    Before: Rendell, Smith and Jordan, Circuit Judges

                                 (Filed February 6, 2007)

                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       In 2005, Kelvin Ford was convicted by a jury of bank robbery and related charges

in the United States District Court for the District of New Jersey. He was sentenced to a

total term of imprisonment of 38 years and four months. Following sentencing, Ford’s

trial counsel filed a notice of appeal, which is currently pending in this Court. See United
States v. Ford, C.A. No. 05-4998.

       In November 2006, Ford filed in the District Court a pro se “Motion for the Court

to Take Judicial Notice,” requesting that the court “vacate, and or dismiss count(s) II and

IV . . . of his facially deficient superseding indictment due to the government’s lack of

proffered subject matter jurisdiction.” The District Court dismissed the motion. It found

that the filing of the notice of appeal divested it of subject matter jurisdiction and that

Ford’s motion, which essentially amounted to motion under 28 U.S.C. § 2255, was

premature while his direct appeal is pending. The District Court also noted that the

motion was procedurally flawed because Ford could not represent himself at the same

time that he is represented by counsel. Ford filed a timely pro se notice of appeal.

       “As a general rule, the timely filing of a notice of appeal is an event of

jurisdictional significance, immediately conferring jurisdiction on a Court of Appeals and

divesting a district court of its control over those aspects of the case involved in the

appeal.” 1 Venen v. Sweet, 758 F.2d 117, 120 (3d Cir. 1985) (citations omitted). See also

Hudson United Bank v. LiTenda Mortg. Corp., 142 F.3d 151, 158 (3d Cir. 1998)

(“[J]urisdiction that is originally and properly vested in the district court becomes vested

in the court of appeals when a notice of appeal is filed.”). As the Court explained in



   1
    Although we have recognized exceptions to this rule, none apply here. See Mary
Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 97 (3d Cir. 1988) (noting that “[t]he district
court retains jurisdiction [after the filing of a notice of appeal] . . . to issue orders staying,
modifying or granting injunctions, to direct the filing of supersedeas bonds, and to issue
orders affecting the record on appeal, the granting of bail, and matters of a similar
nature.”).

                                                2
Venen, this rule “has the salutary purpose of preventing the confusion and inefficiency

which would of necessity result were two courts to be considering the same issue or

issues simultaneously.” 758 F.2d at 121. The Court added that “[t]he rule is a

judge-made, rather than a statutory, creation . . . [and thus, as] a prudential doctrine, the

rule should not be applied when to do so would defeat its purpose of achieving judicial

economy.” Id. Notably, in the context of collateral attacks upon convictions, courts have

concluded that there is no jurisdictional bar to a District Court’s adjudication of a § 2255

motion while the movant’s direct appeal is pending, but that such actions are disfavored

as a matter of judicial economy and concern that the results on direct appeal may make

the District Court’s efforts a nullity. See, e.g., United States v. Prows, 448 F.3d 1223,

1228-29 (10 th Cir. 2006); Kapral v. United States, 166 F.3d 565, 570-72 (3d Cir. 1999)

(recognizing that “if . . . direct review is ongoing . . . the commencement of a

simultaneous § 2255 proceeding would be inappropriate”). While a direct appeal is

pending, a District Court may consider a § 2255 motion only in “extraordinary

circumstances.” Womack v. United States, 395 F.2d 630, 631 (D.C. Cir. 1968).

       Ford’s “Motion for the Court to Take Judicial Notice,” like his direct appeal, seeks

to challenge his conviction and sentence. Because of the possibility that disposition of

the direct appeal may render the motion moot, the District Court properly refrained from

adjudicating the motion. See Feldman v. Henman, 815 F.2d 1318, 1320-21 (9th Cir.

1987) (holding that a “District Court should not entertain a habeas corpus petition while

there is an appeal pending in [the court of appeals] . . . [because] disposition of the appeal

                                               3
may render the [habeas corpus writ] unnecessary.”). Moreover, even if the District Court

is not jurisdictionally barred from acting upon the motion, we cannot say that this case

presents the type of extraordinary circumstance that would warrant simultaneous review.

       Because this appeal presents us with no substantial question, see I.O. P. 10.6, we

will summarily affirm the District Court’s order.




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