UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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 Kromberg, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,

Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
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v. Bankole, No. 97-4453 (4th Cir. Oct. 14, 1998) (unpublished).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 therefore 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 discovered evidence pursuant to Fed. R. App. P. 42(b) on January 14,

2000. The district court denied her motion for reconsideration on Feb2 UNITED STATES v. BANKOLE
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. Johnston, 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 contentions are adequately presented in the materials before the court and

argument would not aid the decisional process. 

VACATED AND REMANDED

UNITED STATES v. BANKOLE 3