Watts v. USA

Filing 5

REPORT AND RECOMMENDATIONS dismissing without prejudice re 4 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Lamarlvin A. Watts Objections to R&R due by 6/29/2017. Signed by Magistrate Judge G. R. Smith on 6/15/17. (trb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
LAMARLVIN WATTS,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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FILED
Scott L. Poff, Clerk
United States District Court

By tblanchard at 9:43 am, Jun 15, 2017

CV417-097
CR415-188

REPORT AND RECOMMENDATION
Jury-convicted of armed bank robbery and brandishing a firearm
during a crime of violence (doc. 112), Lamarlvin Watts’ appeal is
pending before the Eleventh Circuit (docs. 116 & 118; see United States

v. Watts, No. 17-12066-D (11th Cir.)).

He simultaneously seeks to

vacate his sentence through a 28 U.S.C. § 2255 motion. Docs. 125 &
131.
Section 2255, however, is “intended to afford strictly postconviction relief.” See United States v. Casaran-Rivas, 311 F. App’x
269, 273 (11th Cir. 2009) (citing 28 U.S.C. §§ 2255(a), (f)). Collateral
relief and direct-appeal relief cannot be pursued simultaneously, as “the
disposition of a direct appeal might render a habeas motion
unnecessary.” Id. (citing United States v. Khory, 901 F.2d 975, 975

(11th Cir. 1990) (absent extraordinary circumstances, a defendant may
not seek collateral relief while his direct appeal is pending, as the
outcome of the direct appeal may negate the need for habeas relief)); see

also Kapral v. United States, 166 F.3d 565, 570 (3rd Cir. 1999) (“a
collateral attack is generally inappropriate if the possibility of further
direct review remains open.”); Welsh v. United States, 404 F.2d 333
(5th Cir. 1968) (a § 2255 motion “will not be entertained during the
pendency of a direct appeal, inasmuch as the disposition of the appeal
may render the motion moot.”); Jack v. United States, 435 F.2d 317, 318
(9th Cir. 1970) (“[e]xcept under most unusual circumstances, not here
present, no defendant in a federal criminal prosecution is entitled to
have a direct appeal and a § 2255 proceeding considered simultaneously
in an effort to overturn the conviction and sentence.”).
“To this end, the record includes no reason to conclude that
[Watts’] case presents extraordinary circumstances that render this
reasoning inapplicable.”

Casaran-Rivas, 311 F. App’x at 273.

His

§ 2255 motion should be DISMISSED without prejudice as premature.1

1

Meaning, should movant decide to pursue collateral relief after resolution of his
direct appeal, that subsequent § 2255 motion would not be second or successive.
2

This Report and Recommendation (R&R) is submitted to the district
judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this
Court’s Local Rule 72.3. Within 14 days of service, any party may file
written objections to this R&R with the Court and serve a copy on all
parties.

The document should be captioned “Objections to Magistrate

Judge’s Report and Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for consideration by the
assigned district judge.
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge.

The

district

and

judge

will

review

the

magistrate

judge’s

findings

recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp., 648
F. App’x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F. App’x 542, 545
(11th Cir. 2015).
SO REPORTED AND RECOMMENDED, this 15th day of June,
2017.

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