United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE
Special Order 3-251, this habeas case has been
automatically referred for findings, conclusions, and
recommendation. Before the Court is a motion to vacate
sentence under 28 U.S.C. § 2255 (doc. 2), received on
February 26, 2019. Based on the relevant filings and
applicable law, the motion to vacate should be
DISMISSED without prejudice.
DeShaun Steptoe (“Movant”) challenges his federal
conviction and sentence in Cause No. 3:17-CR-390-N-1. The
respondent is the United States of America
he pleaded guilty to being a felon in possession of a
firearm, Movant was sentenced to 110 months' imprisonment
on July 9, 2018. (See 3:17-CR-390, doc. 52, 55.) He
filed a notice of appeal on July 11, 2018, (see Id.
at doc. 54), and his direct appeal is currently still pending
before the Fifth Circuit Court of Appeals. See United
States v. Steptoe, No. 18-10891 (5th Cir.). On or about
February 20, 2019, he mailed his motion to vacate under
§ 2255, in which he alleges sentencing errors,
involuntariness of his plea, and issues concerning his
location of incarceration and time credits. (See
doc. 2 at 7-8.)
SCOPE OF RELIEF AVAILABLE UNDER § 2255
under 28 U.S.C. § 2255 is reserved for transgressions of
constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and would, if
condoned, result in a complete miscarriage of justice.”
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir.
1996) (citations and internal quotation marks omitted). It is
well established that “a collateral challenge may not
do service for an appeal.” United States v.
Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en
banc) (quoting United States v. Frady, 456 U.S.
152, 165 (1982)).
Fifth Circuit has long held that motions to vacate under
§ 2255 are “not entitled to consideration on the
merits” when the direct appeal remains pending. See
Jones v. United States, 453 F.2d 351, 352 (5th Cir.
1972). This is because “‘the disposition of the
appeal may render the motion moot.'” United
States v. Fantozzi, 90 Fed.Appx. 73 (5th Cir. 2004)
(quoting Welsh v. United States, 404 F.2d 333 (5th
Cir.1968), abrogated on other grounds, United States v.
Ortega, 859 F.2d 327 (5th Cir. 1988)). Because
Movant's appeal remains pending before the Fifth Circuit,
this Court should not entertain his § 2255 motion and
should summarily dismiss it as provided by Rule 4 of the
Rules Governing Section 2255 Proceedings for the United
States District Courts without prejudice to re-filing once
his conviction becomes final. See Clay v. United
States, 537 U.S. 522, 525, 527 (2003) (a federal
prisoner's conviction is final for purposes of
limitations either when the Supreme Court denies a petition
for certiorari or, if a petition for certiorari is not filed,
when the time for filing a petition expires).
motion to vacate, set aside, or correct sentence under 28
U.S.C. § 2255 should be DISMISSED WITHOUT
PREJUDICE to re-filing once Movant's conviction
FOR SERVICE AND NOTICE OF RIGHT TO
of these findings, conclusions and recommendation shall be
served on all parties in the manner provided by law. Any
party who objects to any part of these findings, conclusions
and recommendation must file specific written objections
within 14 days after being served with a copy. See
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72 b). In order to
be specific, an objection must identify the specific finding
or recommendation to which objection is made, state the basis
for the objection, and specify the place in the magistrate
judge's findings, conclusions and recommendation where
the disputed determination is found An objection that merely
incorporates by reference or refers to the briefing before
the magistrate judge is not specific Failure to file specific
written objections will bar the aggrieved party from
appealing the factual ...