McCall v. United States of America (INMATE 3)

Filing 7

ORDER (1) OVERRULING petitioner's 5 objection; (2) adopting 2 Report and Recommendation of the Mag Judge; and (3) this case is DISMISSED without prejudice for lack of subject matter jurisdiction. Signed by Chief Judge William Keith Watkins on 2/10/12. (djy, )

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION DATRIST McCALL, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) CASE NO. 2:12-CV-6-WKW ORDER On January 12, 2012, the Magistrate Judge filed a Report and Recommendation (Doc. # 2) regarding Petitioner McCall’s Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 (Doc. # 1). Petitioner filed a timely objection (Doc. # 5). The court reviews de novo the portion of the Recommendation to which the Objection applies. 28 U.S.C. § 636(b)(1). For the reasons that follow, the Objection is due to be overruled and the Recommendation adopted. Petitioner objects to the Magistrate Judge’s recommendation to dismiss his § 2255 motion without prejudice, and he requests that his § 2255 motion “be placed in [a]beyance and/or stayed” while his direct appeal is pending. (Doc. # 5, at 1.) However, as aptly noted by the Magistrate Judge, “a district court lacks jurisdiction over a petitioner’s 28 U.S.C. § 2255 motion during the pendency of the petitioner’s direct appeal.” (Doc. # 2, at 1 (citing United States v. Khoury, 901 F.2d 975, 976 (11th Cir. 1990)).) While Petitioner’s direct appeal is pending, this court has no jurisdiction to entertain his § 2255 motion. Furthermore, Petitioner’s § 2255 motion is premature. The Eleventh Circuit only recently affirmed Petitioner’s conviction and sentence. See United States v. McCall, No. 11-13526 (11th Cir. Feb. 7, 2012). For purposes of § 2255, Petitioner’s federal conviction is not yet final. See Atkins v. United States, 204 F.3d 1086, 1089 n.1 (11th Cir. 2000) (“A conviction ordinarily becomes final when the opportunity for direct appeal of the judgment of conviction has been exhausted.”); see also Clay v. United States, 537 U.S. 522, 527 (2003) (holding that for purposes of § 2255’s oneyear limitation period “[f]inality attaches when [the Supreme Court] affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.”). Accordingly, it is ORDERED that: 1. Petitioner’s objection (Doc. # 5) is OVERRULED; 2. the Recommendation of the Magistrate Judge (Doc. # 2) is ADOPTED; and 3. this case is DISMISSED without prejudice for lack of subject matter jurisdiction. 2 DONE this 10th day of February, 2012. /s/ W. Keith Watkins CHIEF UNITED STATES DISTRICT JUDGE 3

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