Aubrey Aeby v. The Honorable Joe E. Estes, Chief Judge, United States District Court for the Northern District of Texas, Dallas Division

410 F.2d 762, 1969 U.S. App. LEXIS 12673

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 24, 1969
• Docket: 27377_1
• Status: Published

Opinion

PER CURIAM:

Aeby has filed an application for a Writ of Mandamus to order the district court to act on his fourth filed motion to vacate sentence pursuant to 28 U.S.C. § 2255. At the time of filing that § 2255 motion, Aeby had pending in this court an appeal from the district court’s order denying, without a hearing, his third § 2255 motion. It is for this reason that the district court has refrained from acting.

Since the date of filing his mandamus application, the court has issued its opinion on Aeby’s § 2255 appeal. Aeby v. United States, 5 Cir. 1969, 409 F.2d 1 (1969). In light of that opinion, it becomes unnecessary to further consider the mandamus application. Accordingly, the application is dismissed without prejudice to Aeby to proceed as per the instructions contained in this court’s opinion in No. 26363.