Opinion
Civil Action 1:23-CV-298
12-11-2023
ARTHUR WILSON MCDANIELS v. UNITED STATES OF AMERICA
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHRISTINE L. STETSON UNITED STATES MAGISTRATE JUDGE
Movant Arthur Wilson McDaniels, a federal prisoner, proceeding pro se, brings this Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255.
The Motion was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Discussion
Movant is in custody pursuant to a judgment entered in the United States District Court for the Eastern District of Texas. Movant was convicted in cause number 1:22-CR-34 of conspiracy to possess with intent to distribute a controlled substance. Movant was sentenced to 136 months of imprisonment. On July 17, 2023, Movant filed a notice of appeal. The appeal is currently pending before the United States Court of Appeals for the Fifth Circuit.
A District Court may not adjudicate the merits of an application for post-conviction relief if a direct appeal is pending. Fassler v. United States, 858 F.2d 1016, 1019 (5th Cir. 1988). Because Movant's direct appeal is pending before the Fifth Circuit, this court may not entertain the motion to vacate sentence at this time. The Motion should be dismissed, and Movant may refile his Motion to Vacate Sentence after his direct appeal is concluded.
Recommendation
This Motion to Vacate, Set Aside, or Correct Sentence should be dismissed without prejudice.
Objections
Within fourteen days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings of facts, conclusions of law and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).
Failure to file written objections to the proposed findings of facts, conclusions of law and recommendations contained within this report within fourteen days after service shall bar an aggrieved party from the entitlement of de novo review by the district court of the proposed findings, conclusions and recommendations and from appellate review of factual findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.