United States of America v.  Precious Omutunde Bankole

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-6638 
PRECIOUS OMUTUNDE BANKOLE,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-96-479-A, CA-99-1560-AM)
Submitted: October 31, 2000
Decided: November 17, 2000
Before MOTZ and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Precious Omutunde Bankole, Appellant Pro Se. Gordon Dean Krom-
berg, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION
PER CURIAM:
Precious Omutunde Bankole seeks to appeal the district court’s
order denying her motion for reconsideration of the court’s previous
order dismissing without prejudice her 28 U.S.C.A. § 2255 (West
Supp. 2000) motion. We vacate and remand.
Bankole was convicted by a jury of conspiracy to commit money
laundering, 18 U.S.C. § 1956(h) (1994), perjury, 18 U.S.C. § 1623
(1994), and obstruction of justice, 18 U.S.C. § 1503 (1994). She
received a 63-month sentence. Bankole timely noted her appeal. This
Court affirmed Bankole’s convictions and sentence. See United States
v. Bankole, No. 97-4453 (4th Cir. Oct. 14, 1998) (unpublished).
Soon thereafter, on November 19, 1998, Bankole filed a "motion
for newly discovered evidence." In that motion, Bankole claimed that
the Government violated 18 U.S.C. § 201(c)(2) (1994) by offering
immunity to a testifying witness. The district court denied this motion
by order filed on December 2, 1998. Over a week later, on January
13, 1999, Bankole noted her appeal to this court of the district court’s
December 2, 1998, order denying her motion for newly discovered
evidence.
On October 14, 1999, Bankole filed a motion under 28 U.S.C.A.
§ 2255 (West Supp. 2000). In this motion, Bankole raised primarily
ineffective assistance of counsel claims. On October 20, 1999, the
district court dismissed the motion without prejudice on the ground
that "this case" was on appeal to the Fourth Circuit and that it there-
fore did not have jurisdiction to entertain the motion.
On December 30, 1999, Bankole noted her appeal of the district
court’s order dismissing her § 2255 motion. On January 7, 2000,
Bankole filed her motion for reconsideration of the district court’s
dismissal of that order on January 7, 2000. This court subsequently
dismissed Bankole’s appeal of the denial of her motion for newly dis-
covered evidence pursuant to Fed. R. App. P. 42(b) on January 14,
2000. The district court denied her motion for reconsideration on Feb-
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ruary 17, 2000. Bankole timely noted her appeal of that order on April
14, 2000.
A § 2255 motion generally will not be heard where a direct appeal
is pending, except in exceptional circumstances. See Bowen v. John-
ston, 306 U.S. 19, 26-27 (1939). It is clear from the record that
Bankole’s direct appeal was not pending when she filed her 28
U.S.C.A. § 2255 motion. Furthermore, the claims Bankole raised in
her § 2255 motion, were not the same as those raised in her appeal
of the denial of her motion for newly discovered evidence. Thus, she
was entitled to present her claims in a collateral proceeding. See
Boeckenhaupt v. United States, 537 F.2d 1182 (4th Cir. 1976). The
district court was therefore vested with jurisdiction to entertain
Bankole’s habeas motion. In any event, because this court dismissed
the pending appeal in the interim, the district court should have
granted Bankole’s motion for reconsideration. Because the district
court failed to do so, we deny a certificate of appealability, vacate the
district court’s order denying Bankole’s motion for reconsideration,
and remand to the district court for review of Bankole’s § 2255
motion on the merits.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
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