Opinion
Civil Action 00-0936-RV-S.
November 8, 2000
REPORT AND RECOMMENDATION
Petitioner filed a petition under 28 U.S.C. § 2254 challenging his federal conviction rendered in this Court for carjacking, conspiracy, carrying and using a firearm, and robbery of a vehicle (Doc. 1, at 3). Petitioner's § 2254 petition has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is the undersigned's recommendation that the petition be dismissed without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
Section 2254 permits the Court to "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to thejudgment of a State court, only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added). Petitioner, however, is complaining about his federal conviction, and not his state court conviction. Petitioner cannot challenge his federal conviction in an action under § 2254. Consequently, Petitioner is not entitled to any relief under § 2254, and his § 2254 petition is due to be dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Court.
Rule 4 requires the summary dismissal of a petition "[i]f it plainly appears from the face of the petition . . . that the petitioner is not entitled to relief in the district court[.]"
Because Petitioner is proceeding pro se, the Court has examined its docket to determine if at this time Petitioner would be able to file a viable motion under 28 U.S.C. § 2255. See Mederos v. United States, 218 F.3d 1252, 1254 (11th Cir. 2000) (finding that pro se filings in a § 2255 action are to be accorded the liberal construction mandated by Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)). The Court's records reflect that in Criminal Actions 98-CR-99 and 98-CR-159, Petitioner was found guilty in this Court on October 10, 1998, and received a sentence of 1,208 months' imprisonment on February 10, 1999. On February 10, 1999, Petitioner filed a notice of appeal. As of this date, Petitioner's appeal is still pending before the Eleventh Circuit Court of Appeals. Section 2255 provides:
This Court takes judicial notice of its records. ITT Rayonier, Inc. v. United States, 651 F.2d 343, 345 n. 2 (5th Cir. 1981).
Petitioner alleges in his petition that the Eleventh Circuit Court of Appeals ruled on his appeal on July 17, 2000 (Doc. 1, at 3). This allegation is not totally clear because Petitioner also includes with his statement that his counsel filed a no-merit, Anders v. California brief. Nevertheless, a ruling by the Eleventh Circuit on Petitioner's appeal is not reflected on the Court's docket. The Court will not speculate as to the basis for Petitioner's belief that his appeal has been concluded. Furthermore, the Court notes that the docket reflects that Petitioner filed on August 7, 2000, a motion for his attorney Andrew Jones to withdraw as counsel and to have a substitute attorney appointed, which is pending.
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
However, a prisoner cannot seek collateral relief under § 2255 while the direct appeal of his conviction and sentence are pending. United States v. Khoury, 901 F.2d 948, 969 n. 20 (11th Cir.), modified on other grounds, 910 F.2d 713 (11th Cir. 1990); Jones v. United States, 453 F.2d 351, 352 (5th Cir. 1972); Speer v. United States, No. ICV.4:98-CVO211HLM, CIV.4:95-CR-035-10, 1998 WL 1027508 (N.D. Ga. Sept. 17, 1998), aff'd, 166 F.3d 351 (11th Cir. 1998). "`A motion to vacate sentence under 28 U.S.C. § 2255 will not be entertained during the pendency of a direct appeal, inasmuch as the disposition of the appeal may render the motion moot.'" Khoury, 901 F.2d at 948, n. 20 (quoting Welsh v. United States, 404 F.2d 333, 333 (5th Cir. 1968)). Due to the fact that Petitioner's direct appeal of his conviction and sentence is pending before the Eleventh Circuit Court of Appeals, the undersigned concludes that any § 2255 motion that Petitioner would file before his appeal is decided would be dismissed. Speer, supra, at *1. Therefore, the petition will not be construed as one for relief under § 2255, nor will Petitioner be given the opportunity to file a motion under § 2255 on the Court's form. Petitioner is advised that once a ruling is made on his direct appeal, he may at that time file a motion under § 2255 with this Court. Petitioner is further advised that § 2255 requires that a motion be filed within one year of the date on which the judgment of conviction becomes final and that the filing of a second § 2255 must be approved by the Eleventh Circuit Court of Appeals. Petitioner's present action will not be counted as his first § 2255 motion as this is not a ruling on the merits of a § 2255 motion.
Based upon the foregoing reasons, it is the undersigned's recommendation that the petition be dismissed without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.