Allegation of government’s use of perjured testimony may permit abatement of appeal so defendant may proceed under 28 U.S.C. § 2255 in district court

APPEAL/COLLATERAL REVIEW United States v. Rangel, No. 06-2161, ___ F.3d ___ (10th Cir. Mar. 26, 2008). Order abating appeal of conviction for possession of cocaine with intent to distribute while defendant pursues relief under 28 U.S.C. § 2255 in district court. HELD: Where defendant raises substantial question about integrity of government’s prosecution and seeks hearing in district court to establish that government’s knowing use of perjured testimony by case agent deprived him of fair trial, defendant has presented that highly unusual case in which motion under § 2255 is appropriate while appeal from conviction is pending. When, as in the exceptional facts of this case, the collateral claim casts such a dark shadow on a pivotal aspect of the direct appeal and, at the same time, implicates the fundamental fairness of the trial and propriety of the Government's actions, it is our view that the concerns for justice are best served by prompt inquiry either confirming or dispelling the suspicion of irregularity raised. (quoting United States v. Taylor, 648 F.2d 565, 572 (9th Cir. 1981)). Read the opinion here.