Grant v. United States of America

Filing 5

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING CASE. Certificate of Appealability: DENIED. The case is CLOSED. Signed by Judge James I. Cohn on 5/30/2014. (sry)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-21352-CIV-COHN/WHITE
(CASE NO. 13-20921-CR-COHN)
IRA KEMOY GRANT,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
_____________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING CASE
THIS CAUSE is before the Court upon the Report and Recommendation [DE 4]
(“Report”) of Magistrate Judge Patrick A. White concerning Movant Ira Kemoy Grant’s
Motion to Vacate Sentence Under 28 U.S.C. § 2255 [DE 1] (“Motion”). Movant has not
filed objections to the Report by the deadline of May, 2014. Nonetheless, the Court has
reviewed the Report and the Motion de novo and is otherwise advised in the premises.
After Movant pleaded guilty to illegal reentry of a deported alien, this Court
entered judgment against him and imposed a sentence of 46 months’ imprisonment.
See United States v. Grant, Case No. 13-cr-20921-JIC, DE 23 (S.D. Fla. Apr. 14, 2014).
Movant’s counsel filed a Notice of Appeal the same day. See id., DE 25. A day later,
Movant filed his pro se Motion, claiming that counsel provided ineffective assistance.
In the Report, Magistrate Judge White explained that Movant’s Notice of Appeal
“divested this Court of jurisdiction to entertain a collateral attack upon the validity of [his]
conviction and sentence.” DE 4 at 1 (citations omitted). Judge White therefore
recommended that the Motion be dismissed “without prejudice to refile if it concerns a
matter appropriate to be raised after the appeal.” Id. (citations omitted); see id. at 2.

After a careful review, this Court agrees with Judge White’s reasoning,
conclusion, and recommendation. The Court will therefore dismiss the Motion without
prejudice to Movant refiling it, if appropriate, after his pending appeal is concluded.
The Court also denies a certificate of appealabilty because Movant has not shown that
“jurists of reason would find it debatable whether the petition states a valid claim of
denial of a constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,
484 (2000); see 28 U.S.C. § 2253(c)(2).
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.

The Magistrate Judge’s Report and Recommendation [DE 4] is ADOPTED;

2.

The Motion to Vacate Sentence Under 28 U.S.C. § 2255 [DE 1] is DISMISSED
WITHOUT PREJUDICE;

3.

Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings,
Movant is DENIED a certificate of appealabilty. The Court notes that under
Rule 22(b)(1) of the Federal Rules of Appellate Procedure, Movant may seek a
certificate of appealability from the Eleventh Circuit; and

4.

The Clerk of Court shall CLOSE this case and DENY AS MOOT all other
pending motions.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,

Florida, this 30th day of May, 2014.

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Copies provided to:
Magistrate Judge Patrick A. White
Counsel of record
Ira Kemoy Grant, pro se
02023-104
Edgefield Federal Correctional Institution
Inmate Mail/Parcels
Post Office Box 725
Edgefield, SC 29824

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