Opinion
Criminal Action No. 07-134-SS-JMH, (Civil Action No. 09-7075-JMH).
August 24, 2010
ORDER
Calvin L. Goddard, the defendant, pro se, has filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 [DE 271] and later amended or supplemented the same. [DE 277]. He subsequently submitted a proposed second supplement to his § 2255 motion [DE 320]. The matter is currently before the undersigned on the Report and Recommendation of Magistrate Judge Candace J. Smith [DE 368] and Goddard's objections thereto. [DE 369]. After de novo consideration, and being advised,
IT IS ORDERED herein as follows:
(1) That Magistrate Judge Smith's Report and Recommendation be, and the same hereby is, ADOPTED in its entirety.
On September 29, 2008, Defendant Goddard pled guilty to attempting to possess with intent to distribute 500 grams or more of cocaine and to criminal forfeiture. [DE 156]. In exchange for his plea, the Government agreed to dismiss the remaining counts against him. [DE 158]. On October 7, 2008, Goddard moved to withdraw his plea [DE 172), which the Court denied on October 9, 2008 [DE 177]. On January 26, 2009, Goddard was sentenced to a term of imprisonment for 180 months and Judgment was entered. [DE 226]. On February 2, 2009, Goddard appealed from that Judgment [DE 230], an appeal still pending before the Sixth Circuit Court of Appeals. United States v. Goddard, No. 09-5120 (6th Cir.). On May 18, 2009, with his direct appeal pending, Goddard initiated the instant § 2255 proceedings. [DE 271].
As Magistrate Judge Smith noted in her Report and Recommendation, Goddard's § 2255 motion is premature inasmuch as his direct appeal to the Sixth Circuit is currently pending [see DE 343] and he has not demonstrated that any extraordinary circumstances exist. [DE 368]. The magistrate judge recommended that Goddard's § 2255 motion [DE 271] as well as his amendment/supplement and proposed amendment thereto [DEs 277 and 320] be denied without prejudice. [DE 368].
Although Goddard objects to the magistrate judge's recommendation [DE 368], the undersigned is not satisfied that the motion under § 2255 should be addressed while his appeal from his conviction is still pending. Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998).
(2) That Goddard's § 2255 proceeding, including Civil Case No. 09-7075, be, and the same hereby is, DISMISSED without prejudice and stricken from the docket of this Court.
(3) That the remainder of Goddard's pending motions be, and the same hereby are, DENIED without prejudice.
(4) That no Certificate of Appealability be issued as the Court's denial without prejudice of Goddards's § 2255 motion is not a "final" order under 28 U.S.C. § 2253(a), see United States v. Ocampo, No. 06-20172, 2009 WL 3429606 (E.D. Mich. Oct. 20, 2009), nor has the § 2255 motion been reviewed on the merits and, consequently, a substantial showing of the denial of a constitutional right as required under 28 U.S.C. § 2253(c)(2) has not been considered.