Wilson v. United States Of America

Filing 4

ORDER ADOPTING the 2 REPORT AND RECOMMENDATIONS, dismissing without prejudice Petitioner's 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) as premature, and discerning no COA-worthy issues at this stage of the litigation, so no COA should issue. The Clerk is directed to open a new civil action and docket Petitioner's 3 Motion as a new § 2255. This case stands closed. Signed by Judge William T. Moore, Jr on 11/17/2022. (jlh) Modified on 11/17/2022 (jlh).

Case 4:21-cv-00088-WTM-CLR Document 4 Filed 11/17/22 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

COREY LEONARD WILSON,

Petitioner,
CASE NO. CV421-088

V.

CR418-031

UNITED STATES OF AMERICA,

Respondent.

ORDER

Before the Court is the Magistrate Judge's June 1, 2022,

Report and Recommendation. (Doc. 2.)^ Petitioner Corey Leonard
Wilson did not object to the report and recommendation. Instead,
Petitioner filed a second Motion Under 28 U.S.C. § 2255 to Vacate,

Set Aside, or Correct Sentence,. (Doc. 3.) After a careful review
of the record,2 the report and recommendation (Doc. 2) is ADOPTED

as the Court's opinion in this case, and Petitioner's first Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence

(Doc. 1) is DISMISSED WITHOUT PREJUDICE. However, for the reasons

1 Unless otherwise stated, all citations are to Petitioner's civil
docket on this Court's electronic filing system, CV421-088.
2 The Court reviews de novo a magistrate judge's findings to which

a party objects, and the Court reviews for clear error the portions
of a report and recommendation to which a party does not object.
28 U.S.C. § 636(b)(1); see Merchant v. Nationwide Recovery Serv.,

Inc., 440 F. Supp. 3d 1369, 1371 (N.D. Ga. 2020) (outlining the
standard of review for report and recommendations (citing Macort
V. Prem, Inc., 208 F. App'x 781, 784 (11th Cir. 2006) (per
curiam))).

Case 4:21-cv-00088-WTM-CLR Document 4 Filed 11/17/22 Page 2 of 4

explained below, the Clerk of Court is DIRECTED to open a new civil
action and docket Petitioner's second motion (Doc. 3) as a new
§ 2255 motion.

In January 2019, Petitioner was convicted at trial of one

count of possession of cocaine with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 851. (CR418-

031, Docs. 94, Attach. 1; 112.) Petitioner filed a notice of appeal
on April 15, 2019 (CR418-031, Doc. 113), and while his appeal was

pending. Petitioner filed his first motion to vacate his conviction
pursuant to 28 U.S.C. § 2255 (Doc. 1). Since Petitioner filed his
motion before the Court of Appeals affirmed his conviction and

sentence .on

direct

appeal

(CR418-031,

Doc.

176

at

2),

the

Magistrate Judge recommended that Petitioner's motion be dismissed
without prejudice (Doc. 2 at 3-4). See Blair v. United States, 527

F. App'x 838, 839 (11th Cir. 2013) (per curiam) (''The appropriate
course of action for addressing a § 2255 motion filed during the

pendency of the direct appeal is to dismiss the § 2255 action
without prejudice."). Accordingly, the Magistrate Judge's report
and recommendation (Doc. 2) is ADOPTED as the Court's opinion in

this case, and Petitioner's premature § 2255 Motion (Doc. 1) is
DISMISSED WITHOUT PREJUDICE, The Clerk of Court is DIRECTED to

close the case. Applying the Certificate of Appealability (COA)
standards set forth in Brown v. United States, Nos. 407CV085,

403CR001, 2009 WL 307872, at *1-2 (S.D. Ga. Feb. 9, 2009), the

Case 4:21-cv-00088-WTM-CLR Document 4 Filed 11/17/22 Page 3 of 4

Court

discerns

no

COA-worthy

issues

at

this

stage

of

the

litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1); Rule
11(a) of the Rules Governing Section 2255 Proceedings for the
United States District Courts ("The district court must issue or

deny a certificate of appealability when it enters a final order
adverse to the applicant.").

Despite the

Clerk's characterization,

Petitioner's second

motion is not an "amended" motion. Rather, it is a renewed motion

in response to the Magistrate Judge's recommendation. Accordingly,
the Clerk of Court is DIRECTED to open a new civil action and
docket Petitioner's second motion (Doc. 3) as a new § 2255 motion.

The Clerk of Court is further DIRECTED to docket a copy of this
Order in the new civil case. The second motion (CR418-031, Doc.

180) should remain pending in Petitioner's criminal case. Finally,
the Clerk of Court is DIRECTED to docket any future filings related
to Petitioner's renewed § 2255 motion into the newly opened civil
case.

The Court has reviewed Petitioner's renewed motion pursuant

to Rule 4(b) of the Rules Governing Section 2255 Proceedings for

Case 4:21-cv-00088-WTM-CLR Document 4 Filed 11/17/22 Page 4 of 4

the

United States

District Courts. The Court concludes that it

does not plainly appear that Petitioner is not entitled to relief.
Accordingly, the Court DIRECTS the Government to respond within
ninety (90) days from the date of this Order.
7^
SO ORDERED this

day of November 2022.

WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN

DISTRICT OF GEORGIA