Opinion
Civil Action 4:24cv435 Criminal Action 4:23cr136(1)
07-22-2024
OLAMIDE OLATAYO BELLO, #65100510 v. UNITED STATES OF AMERICA
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KIMBERLY C. PRIEST JOHNSON UNITED STATES MAGISTRATE JUDGE.
Pro se Movant Olamide Olatayo Bello filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, complaining of alleged constitutional violations during the course of his underlying criminal prosecution in the Eastern District of Texas, Sherman Division. The motion was referred to the undersigned United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case pursuant to 28 U.S.C. § 636, and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge.
On June 15, 2023, Movant was charged in an Indictment with Conspiracy to Commit Wire Fraud, in violation of 18 U.S.C. § 1349. Crim. ECF (Dkt. #1). As of today, Movant's criminal charges remain pending before this Court. Movant has not yet been tried, much less convicted or sentenced.
“It is a jurisdictional requirement of § 2255 that the conviction and sentence being challenged are final.” United States v. Clark, 816 F.3d 350, 362 (5th Cir. 2016) (citing Jones v. United States, 453 F.2d 351, 352 (5th Cir. 1972) (per curiam)). In the present case, no final judgment has been entered. Consequently, Movant's request for collateral relief pursuant to § 2255 is premature. See Fassler v. State, 858 F.2d 1016, 1019 (5th Cir. 1988) (criminal defendant may not collaterally attack his sentence until it has been affirmed on direct appeal); United States v. Bernegger, 661 F.3d 232, 241 (5th Cir. 2011) (same). Because Movant's § 2255 motion is premature, it should be dismissed without prejudice. Bernegger, 661 F.3d at 241.
CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a proceeding under § 2255 “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1)(B). Although Movant has not yet filed a notice of appeal, the Court will address whether Movant would be entitled to a certificate of appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua sponte rule on a certificate of appealability because “the district court that denies a [movant] relief is in the best position to determine whether the [movant] has made a substantial showing of a denial of a constitutional right on the issues before the court. Further briefing and argument on the very issues the court has just ruled on would be repetitious.”).
A certificate of appealability may issue only if a movant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the requirement associated with a “substantial showing of the denial of a constitutional right” in Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected constitutional claims on the merits, the movant must demonstrate “that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). When a district court denies a motion on procedural grounds without reaching the underlying constitutional claim, a certificate of appealability should issue when the movant shows, at least, that jurists of reason would find it debatable whether the motion states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Id.
In this case, it is respectfully recommended that reasonable jurists could not debate the denial of Movant's § 2255 motion on procedural grounds, nor find that the issues presented are adequate to deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37 (2003) (citing Slack, 529 U.S. at 484). Accordingly, it is recommended that the Court find Movant is not entitled to a certificate of appealability.
RECOMMENDATION
It is accordingly recommended that the above-styled motion for relief under 28 U.S.C. § 2255 be dismissed without prejudice. It is further recommended a certificate of appealability be denied.
Within fourteen days after service of the magistrate judge's report, any party must serve and file specific written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). To be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific.
Failure to file specific, written objections will bar the party from appealing the unobjected-to factual findings and legal conclusions of the magistrate judge that are accepted by the district court, except upon grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superceded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days).
So ORDERED and SIGNED.