Johnson v. United States

          GAYLES, JUDGE

          REPORT OF MAGISTRATE JUDGE

          REID, MAGISTRATE JUDGE

         I. Introduction

         This 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.

         This 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 2].

         II. Background

         On June 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].^[2]

         III. Discussion

         1) § 2255 Motion: Time to File

         “In 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 . . . .”).

         Similarly, 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.

         Here, 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.

         2) Statute of Limitations

         Should 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 ...