Sanders v. United States of America

Filing 8

REPORT AND RECOMMENDATIONS on 28 USC 2255 case re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Anthony J. Sanders Recommending dismissing without prejudice as to any issue not cognizale on appeal. Objections to R&R due by 1/5/2009. Signed by Magistrate Judge Patrick A. White on 12/17/2008. (tw)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-14385-CIV-MIDDLEBROOKS (00-14086-CR-MIDDLEBROOKS) MAGISTRATE JUDGE P.A. WHITE ANTHONY J. SANDERS, Movant, v. UNITED STATES OF AMERICA, : : : : REPORT RE 2255 WITH PENDING APPEAL Respondent. : ______________________________ Anthony Sanders has filed a pro se motion to vacate pursuant to 28 U.S.C. 2255 attacking the conviction and/or sentence imposed in Case No. 00-14086-Cr-Middlebrooks, for possession with intent to distribut five grams or more of crack cocaine, in violation of 21 U.S.C. 841. The movant is seeking a reduction of sentence. The Court has reviewed the record and the government's response to an order to show cause (DE#7). The docket of the criminal case reveals that the movant filed a notice of appeal on October 31, 2008, and that the appeal remains pending before the Eleventh Circuit Court of Appeals. The movant is appealing the denial of his motion to reduce sentence filed pursuant to 18 U.S.C. 3582. The notice of appeal divested this Court of jurisdiction to entertain a collateral attack upon the validity of the conviction and sentence. United States v. Tovar-Rico, 61 F.3d 1529, 1532 (11 Cir. 1995), United States v. Wilson, 894 F.2d 1245, 1252 (11 Cir. 1990). The motion should be dismissed, without prejudice to refile if it concerns a matter appropriate to be raised after the appeal. United States v. Khoury, 901 F.2d 948, 969 n.20 (11 Cir. 1990); Shewchun v. United States, 797 F.2d 941 (11 cir. 1986). It is therefore recommended that this motion be dismissed, without prejudice as to any issue not cognizable on appeal. Objections to this report may be filed with the District Judge within ten days of receipt of a copy of the report. Dated this 17th day of December, 2008. ______________________________ UNITED STATES MAGISTRATE JUDGE cc: Anthony J. Sanders, Pro Se Reg. No. 39637-018 FCC-Coleman Low Address of Record United States Attorney Rinku Talwar 99 N.E. 4th Street Miami, FL 33132 2

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