Opinion
CRIMINAL ACTION NO. 1:18-CR-0092-TCB-LTW-2 CIVIL ACTION NO. 1:20-CV-3908-TCB-LTW
10-22-2020
UGOCHUKWU LAZARUS ONEBUNNE, Movant, v. UNITED SATES OF AMERICA, Respondent.
MOTION TO VACATE 28 U.S.C. § 2255 FINAL REPORT AND RECOMMENDATION
This matter has been submitted to the undersigned Magistrate Judge for consideration of Ugochukwu Lazarus Onebunne's pro se motion under 28 U.S.C. § 2255 (Doc. 127) and the government's response thereto (Doc. 133). For the reasons that follow, the undersigned RECOMMENDS that Onebunne's § 2255 motion [127] be DISMISSED WITHOUT PREJUDICE.
I. Discussion
A federal grand jury in the Northern District of Georgia returned a forty-five count, superseding indictment against Onebunne and co-defendant Olu Victor Alonge, charging Onebunne in Count One with conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, in Count Fifteen with wire fraud, in violation of 18 U.S.C. §§ 1343 and 2, in Count Thirty with conspiracy to launder money, in violation of 18 U.S.C. § 1956(h), in Counts Forty through Forty-Four with aggravated identify theft, in violation of 18 U.S.C. §§ 1028A and 2, and in Count Forty-Five with possession with intent to use unlawfully five or more identification documents, in violation of §§ 1028A(a)(3)&(b)(2)(B) and 2. (Doc. 46.) Represented by retained attorney R. Gary Spencer, Onebunne entered a negotiated guilty plea to Count One. (Docs. 56-1 & 61.) The Court imposed a sentence of 120 months of imprisonment. (Doc. 104.) On August 6, 2020, the United States Court Appeals for the Eleventh Circuit affirmed Onebunne's sentence. (Doc. 122.)
Onebunne submitted this § 2255 motion on September 10, 2020, arguing that his guilty plea was involuntary due to his attorney's ineffective assistance. (Doc. 127.) The government responds that Onebunne's § 2255 motion should be dismissed as premature. (Doc. 133 at 4-6.)
"[T]he time for filing a § 2255 motion begins to run after the direct appeal process is complete[;] . . . pursuit of habeas relief should follow pursuit of direct-appeal relief[,]" as "the disposition of a direct appeal might render a habeas motion unnecessary." United States v. Casaran-Rivas, 311 F. App'x 269, 273 (11th Cir. 2009) (per curiam). Onebunne's appeal is still pending because his case does not become final until the ninety-day period for seeking a writ of certiorari to the Supreme Court expires on November 4, 2020. See United States v. Stanley, No. 1:09-CR-0406-TCB-JFK-2 (N.D. Ga. Feb. 18, 2014), at (Doc. 345). Accordingly, Onebunne's § 2255 motion is premature and should be dismissed without prejudice. See Casaran-Rivas, 311 F. App'x at 274; Stanley, No. 1:09-CR-0406-TCB-JFK-2, (Doc. 345 at 6).
II. Certificate of Appealability
A federal prisoner may not appeal the denial of his § 2255 motion "unless a circuit justice or a circuit or district judge issues a certificate of appealability ["COA"] under 28 U.S.C. § 2253(c)." Fed. R. App. P. 22(b)(1). Rule 11 of the Rules Governing § 2255 Cases provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."
A COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A substantial showing of the denial of a constitutional right "includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (citations and quotation marks omitted).
A COA is not warranted here because the dismissal of Onebunne's § 2255 motion as premature is not debatable by jurists of reason.
III. Conclusion
For the foregoing reasons, the undersigned RECOMMENDS that Onebunne's premature § 2255 motion [127] and civil action number 1:20-CV-3908-TCB-LTW be DISMISSED WITHOUT PREJUDICE and that a COA be DENIED.
SO RECOMMENDED, this 22 day of October, 2020.
/s/_________
LINDA T. WALKER
UNITED STATES MAGISTRATE JUDGE