United States of America v. Kelvin Ford

CLD-114 NOT PRECEDENTIAL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

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Although we have recognized exceptions to this rule, none apply here. See Mary1
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.”).
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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.” Venen v. Sweet, 758 F.2d 117, 120 (3d Cir. 1985) (citations omitted). See also1
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

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

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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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