United States District Court, S.D. Florida
REPORT OF MAGISTRATE JUDGE
matter is before the Court on Movant's filing, titled
“Writ of Habeas Corpus, ” which has been
construed as Movant's attempt to file a pro se
motion to vacate pursuant to 28 U.S.C. § 2255
(“Motion”). [ECF 1].[1"
name="FN1" id="FN1">1] In his Motion, Movant
alleges violations of his Fourth Amendment, Fifth Amendment,
and Fourteenth Amendment due process rights under the United
States Constitution. [Id. pp. 2-3]. However, the
Motion was filed before Movant was convicted and sentenced.
See [Id]. Accordingly, for the reasons set
forth below, the Court RECOMMENDS that Movant's motion be
DISMISSED as premature.
Cause has been referred to the Undersigned for consideration
and report pursuant to 28 U.S.C. § 636(b)(1)(B), (C);
S.D. Fla. Local Rule 1(f) governing Magistrate Judges; S.D.
Fla. Admin. Order 2019-02; and Rules 8 and 10 Governing
Section 2255 Cases in the United States District Courts. [ECF
26, 2019, Movant was adjudicated guilty of being a felon in
possession of a firearm and ammunition, following a guilty
plea. United States of America v. Maurice Alfonso
Johnson, No. 19-60038-CR-GAYLES, Judgment [CR ECF 32, p.
1] (S.D. Fla. June 26, 2019). Before the judgment was
entered, on June 24, 2019, Movant signed and filed the
instant Motion. [ECF 1, p. 4].
§ 2255 Motion: Time to File
general, a § 2255 motion will be a federal
prisoner's ‘primary method of collateral
attack' on his conviction and sentence after that
conviction has become final.” Santivanez v. Warden,
FCC Coleman-USP II, 16 Fed.Appx. 833');">416 Fed.Appx. 833, 834 (11th Cir.
2011) (quoting McGhee v. Hanberry, 604 F.2d 9, 10
(5th Cir. 1979)). Accordingly, “[§] 2255, and the
relevant case law, instruct that the time for filing a §
2255 motion begins to run after the direct appeal process is
complete, such that the statutory language suggests that
pursuit of habeas relief should follow pursuit of
direct-appeal relief.” United States v.
Casaran-Rivas, 11 Fed.Appx. 269');">311 Fed.Appx. 269, 273 (11th Cir. 2009);
see also Kapral v. United States, 166 F.3d 565');">166 F.3d 565, 570
(3d Cir. 1999) (“[A] collateral attack is generally
inappropriate if the possibility of further direct review
remains open . . . .”).
because “§ 2255 allows ‘a prisoner in
custody under sentence of a court' to challenge [their]
sentence, . . . the statutory language itself assumes that
the movant has already been sentenced.”
Casaran-Rivas, 311 Fed.Appx. at 273 (citation
omitted) (holding that the district court should have
dismissed movant's § 2255 motion as premature where
movant submitted a § 2255 motion prior to sentencing).
“Section 2255's statutory construction demonstrates
that § 2255 was intended to afford strictly
post-conviction relief.” Id. (citing 28 U.S.C.
§ 2255(a), (f)). Based upon the Eleventh Circuit's
decision in Casaran-Rivas where the Court considered
this provision, this court has no authority to determine
Movant's § 2255 claim because it was filed before
his judgment became final.
Movant's conviction became final on July 10, 2019, after
the fourteen-day period for filing a notice of direct appeal
expired. [CR ECF 32]. See Fed. R. App. P.
4(b)(1)(A). Movant filed the instant Motion on June 24, 2019.
[ECF 1]. The instant Motion is premature, and the Court
recommends that the Motion be dismissed.
Statute of Limitations
Movant decide to pursue collateral relief, the next §
2255 motion submitted by Movant shall not be second or
successive. See Casaran-Rivas, 311 Fed.Appx. at 274.
However, Movant is cautioned that his claims should be filed