USA v. LIZ et al

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOELVIS ACOSTA LIZ, ISA NOEL,
KIRSTEN ALEXANDER, EDISSON
PEGUERO ORTIZ,
Defendant.
)
)
)
)
) Criminal No. 2013-31
)
)
)
)
)
)
)
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.
Case: 3:13-cr-00031-WAL-RM Document #: 227 Filed: 01/11/18 Page 1 of 4

United States v. Liz, et al.
Criminal No. 2013-31
Page 2
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
Case: 3:13-cr-00031-WAL-RM Document #: 227 Filed: 01/11/18 Page 2 of 4

United States v. Liz, et al.
Criminal No. 2013-31
Page 3
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
Case: 3:13-cr-00031-WAL-RM Document #: 227 Filed: 01/11/18 Page 3 of 4

United States v. Liz, et al.
Criminal No. 2013-31
Page 4
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
Case: 3:13-cr-00031-WAL-RM Document #: 227 Filed: 01/11/18 Page 4 of 4