Winston v. United States of America (INMATE 3)

Filing 13

ORDER granting 12 application for Leave to Proceed in forma pauperis ; OVERRULING petitioner's 11 objections; ADOPTING 8 REPORT AND RECOMMENDATION of the Mag Judge; ORDERING that this 28 USC 2255 motion is DENIED without prejudice. Signed by Honorable Judge W. Harold Albritton, III on 11/6/12. (djy, )

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION ANTHONY LAMAR WINSTON, ) ) ) ) ) ) ) ) ) Petitioner, vs. UNITED STATES OF AMERICA Respondent. CIVIL ACTION NO. 3:12cv765-WHA (WO) ORDER This case is before the court on the Recommendation of the Magistrate Judge (Doc. #8), the Petitioner’s Objection (Doc. #11), and Petitioner’s Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. #12). It is hereby ORDERED that the Application (Doc. #12) is GRANTED. Upon an independent evaluation and de novo review of this case, the court finds the Objection to be without merit and is hereby OVERRULED. This court has no jurisdiction while the Petitioner’s criminal conviction is on appeal. The court agrees with the Magistrate Judge that this motion should be denied without prejudice, and that the Petitioner may file a new § 2255 motion when his appeal is concluded and jurisdiction is again vested in the district court. Therefore, the court ADOPTS the Recommendation of the Magistrate Judge, and it is hereby ORDERED that this 28 U.S.C. § 2255 motion is DENIED without prejudice. DONE this 6th day of November, 2012. /s/ W. Harold Albritton W. HAROLD ALBRITTON SENIOR UNITED STATES DISTRICT JUDGE

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