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 On March 27, 2006, the district court entered judgment against petitioner, sentencing 

him to twelve days confinement, with credit for twelve days served, followed by the two-year 

term of supervised release. See United States v. Fofana, CR04-511-JLR, Dkt. Nos. 186, 190 

(W.D. Wash. 2006).

REPORT AND RECOMMENDATION

PAGE -1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MAUDO FOFANA, a/k/a Muhammad

Fofana,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent. ____________________________________

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Case No. C06-869-JLR-JPD

CR04-511-JLR

REPORT AND RECOMMENDATION 

Petitioner is a federal prisoner currently serving a two-year term of supervised release

at the Northwest Detention Center in Tacoma, Washington, in the custody of United States

Immigration and Customs Enforcement (ICE) pursuant to 18 U.S.C. § 3624(e).1 Petitioner

has filed a motion under 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his 2006

federal court sentence. Respondent has filed a response opposing petitioner’s motion. After

careful consideration of the motion, supporting materials, governing law and the balance of the

record, the Court concludes that petitioner’s § 2255 motion should be DENIED.

Case 2:06-cv-00869-JLR Document 8 Filed 09/22/06 Page 1 of 2
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REPORT AND RECOMMENDATION

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A review of the history of petitioner’s underlying criminal case reveals that

petitioner’s direct appeal of that case is still pending before the United States Court of

Appeals for the Ninth Circuit. See Fofana v. United States, Case No. 06-30196 (9th Cir.)

(filed March 27, 2006). In addition to this direct appeal, it appears that petitioner has two

other appeals pending before two different courts: (1) a pro se appeal pursuant to 28 U.S.C. §

2241 pending before the Ninth Circuit under the title Fofana v. Melendez, Case. No. 06-

35622 (9th Cir.) (filed July 25, 2006); and (2) a BIA appeal of the August 3, 2005 decision

made by the immigration judge regarding petitioner’s removal.

Absent “extraordinary circumstances,” a district court should not entertain a

petitioner’s collateral attack on a conviction while that petitioner also has a direct appeal

pending in the Ninth Circuit. See United States v. LaFromboise, 427 F.3d 680, 686 (9th Cir.

2005) (“[U]ntil direct appellate review is exhausted the district court may not entertain a

motion for habeas relief.”); Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987) (same). 

 To do so would thwart judicial economy. See United States v. Deeb, 944 F.2d 545, 548 (9th

Cir. 1991); Feldman, 815 F.2d at 1320 (“The reason for this rule is that disposition of the

appeal may render the [petition] unnecessary.”) (internal quotations omitted); see also Rules

Governing § 2255 Proceedings for the United States District Courts, Rule 5, Adv. Comm.

Notes (rule reflects a prudential concern and not a jurisdictional bar). Accordingly, the Court

recommends that petitioner’s petition be DISMISSED without prejudice. A proposed Order

accompanies this Report and Recommendation.

DATED this 22nd day of September, 2006.AJAMES P. DONOHUE

United States Magistrate Judge 

Case 2:06-cv-00869-JLR Document 8 Filed 09/22/06 Page 2 of 2