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Elmore v. United States

United States District Court, Middle District of Alabama, Northern Division

July 17, 2014

KEVIN LEVAN ELMORE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

RECOMMENDATION OF THE MAGISTRATE JUDGE

TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE

On June 16, 2014, the petitioner, Kevin Levan Elmore (“Elmore”) filed this pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 1), in which he challenges the sentence this court imposed in December 2013 after he pled guilty to conspiracy to distribute a controlled substance and use of a communication facility to facilitate a drug offense. The court finds that this § 2255 motion should be denied without prejudice because Elmore’s direct appeal is pending in the Eleventh Circuit Court of Appeals.

As explained in United States v. Khoury, 901 F.2d 975, 976 (11th Cir. 1990), a district court is without authority to hear a petitioner’s 28 U.S.C. § 2255 motion during the pendency of the petitioner’s direct appeal.[1] In the present case, Elmore, through counsel, filed a notice of appeal on January 7, 2014, appealing his conviction and sentencing. See Case No. 2:12cr235-MEF, Doc. No. 448. Elmore’s appeal has been assigned USCA Case No. 14-10110-B. See id., Doc. No. 456. On the date this Recommendation is being entered, Elmore’s appeal remains pending in the Eleventh Circuit Court of Appeals. During the pendency of Elmore’s direct appeal, this court lacks authority to consider his motion for relief under 28 U.S.C. § 2255, and accordingly, the motion should be denied without prejudice.

If Elmore so chooses, he may refile a § 2255 motion when jurisdiction is vested in the district court.

CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that Elmore’s 28 U.S.C. § 2255 motion be DENIED without prejudice.

It is further ORDERED that the parties shall file any objections to this Recommendation on or before July 31, 2014. A party must specifically identify the findings in the Recommendation to which objection is made; frivolous, conclusive, or general objections will not be considered. Failure to file written objections to the Magistrate Judge’s proposed findings and recommendations shall bar a party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).


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