Opinion
Case No: 6:15-cv-1309-Orl-31GJK
08-11-2015
ALVARO DE LA TORRE-VALDEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
(6:14-cr-262-Orl-31GJK) ORDER
This cause is before the Court on the Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1) (the "Motion to Vacate") filed by Petitioner pursuant to 28 U.S.C. § 2255. For the reasons set forth herein, the Motion to Vacate is denied without prejudice.
I. PROCEDURAL BACKGROUND
A grand jury charged Petitioner by indictment with one count of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine. (Criminal Case No. 6:14-cr-262-Orl-31GJK, Doc. 1). Petitioner pled guilty to the charge and, on July 27, 2015, the Court adjudicated Petitioner guilty of the crime and sentenced him to imprisonment for a term of 125 months. (Criminal Case Doc. 58). Petitioner filed a notice of appeal (Criminal Case Doc. 63) on August 5, 2015, and the appeal remains pending with the Eleventh Circuit Court of Appeals.
Criminal Case No. 6: 14-cr-262-Orl-31GJK will be referred to as "Criminal Case." --------
II. ANALYSIS
"[A]bsent extraordinary circumstances, a defendant may not seek collateral relief while his direct appeal is pending, as the outcome of the direct appeal may negate the need for habeas relief." United States v. Casaran-Rivas, 311 F. App'x 269, 272 (11th Cir. 2009). As further discussed by the Eleventh Circuit Court of Appeals in Casaran-Rivas,
Section 2255's statutory construction demonstrates that § 2255 was intended to afford strictly post-conviction relief. See 28 U.S.C. § 2255(a), (f). First, § 2255 allows "[a] prisoner in custody under sentence of a court" to challenge that sentence, such that the statutory language itself assumes that the movant already has been sentenced. See 28 U.S.C. § 2255(a). Also, § 2255, and the relevant case law, instruct that the time for filing a § 2255 motion begins to run after the direct appeal process is complete, such that the statutory language suggests that pursuit of habeas relief should follow pursuit of direct-appeal relief. See 28 U.S.C. § 2255(f); Akins, 204 F.3d at 1089 n. 1; Washington, 243 F.3d at 1300; Clay, 537 U.S. at 532, 123 S. Ct. at 1079. Likewise, the reasoning cited by the courts who have held that collateral relief and direct-appeal relief cannot be pursued simultaneously, namely that the disposition of a direct appeal might render a habeas motion unnecessary, applies with equal force to pursuing habeas relief before direct-appeal relief. See, e.g., Khoury, 901 F.2d at 976.Id. at 273.
In the present case, Petitioner fails to allege, and the record includes no reason to conclude, that the instant case presents extraordinary circumstances. As such, the Motion to Vacate is denied without prejudice as premature.
III. CERTIFICATE OF APPEALABILITY
This Court should grant an application for a certificate of appealability only if the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca v. Sec'y, Dep't of Corr., 568 F.3d 929, 934 (11th Cir. 2009). However, the petitioner need not show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
Petitioner fails to demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. Moreover, Petitioner cannot show that jurists of reason would find this Court's procedural rulings debatable. Petitioner fails to make a substantial showing of the denial of a constitutional right. Thus, the Court will deny Petitioner a certificate of appealability.
V. CONCLUSION
Accordingly, it is hereby ORDERED and ADJUDGED as follows:
1. The Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1) is DENIED as premature.
2. This case is DISMISSED without prejudice.
3. Petitioner is DENIED a certificate of appealability.
4. The Clerk of the Court is directed to close this case. A copy of this Order shall also be filed in criminal case number 6:14-cr-262-Orl-31GJK.
5. The Clerk of the Court is directed to terminate the section 2255 motion (Criminal Case Doc. 66) filed in criminal case number 6:14-cr-262-Orl-31GJK.
DONE and ORDERED in Orlando, Florida on August 11, 2015.
/s/ _________
GREGORY A. PRESNELL
UNITED STATES DISTRICT JUDGE
Copies furnished to: Counsel of Record
Unrepresented Party
OrlP-2 8/11