Opinion
21cv8768 (DLC) 20cr179-11 (DLC)
11-09-2021
VICTOR AHAIWE, Petitioner, v. UNITED STATES OF AMERICA, Defendant.
ORDER
DENISE COTE, DISTRICT JUDGE
Victor Ahaiwe, who is currently incarcerated at the Metropolitan Detention Center in Brooklyn, New York, brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2255 challenging his June 10, 2021 conviction in this Court. Ahaiwe has not yet been sentenced. By Order dated October 22, 2021, the Court scheduled a conference for November 3, 2021 to conduct an allocution with Ahaiwe to determine whether he knowingly and voluntarily waives the right to counsel and to set a schedule for the filing of sentencing submissions and schedule sentence. That conference has been adjourned due to Ahaiwe's quarantine.
A § 2255 motion is not the proper vehicle to challenge a federal conviction for a federal prisoner who has not yet been sentenced. See Stantini v. United States, 140 F.3d 424, 426 (2d Cir. 1998). The Court therefore denies the motion brought under 1 § 2255 without prejudice. Ahaiwe must wait until after he is sentenced to challenge the validity of his judgment of conviction and sentence. When that time comes, he may file a direct appeal in the United States Court of Appeals for the Second Circuit, and if his conviction is affirmed, he may seek collateral relief by filing a motion under 28 U.S.C. § 2255. Accordingly, it is hereby
ORDERED that Ahaiwe's petition is denied.
IT IS FURTHER ORDERED that Ahaiwe has not made a substantial showing of a denial of a federal right and, therefore, a certificate of appealability shall not be granted. Hoffler v. Bezio, 726 F.3d 144, 154 (2d Cir. 2013); Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990). Pursuant to 28 U.S.C. § 1915(a) (3), any appeal would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962).
IT IS FURTHER ORDERED that the Clerk of Court shall mail a copy of this Order to Ahaiwe, note mailing on the docket, and close case 21cv8768.
SO ORDERED: 2