Opinion
Case No.: 5:16cr23/RH/EMT Case No.: 5:17cv130/RH/EMT
05-05-2017
UNITED STATES OF AMERICA v. ANTOINETTE THERESA KNOWLES
REPORT AND RECOMMENDATION
This case is before the court on a "Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" filed by Defendant (ECF No. 134). In October 2016, Defendant entered guilty pleas to one count of conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine and 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, and one count of possession with intent to distribute 50 grams or more of methamphetamine and 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine and aiding and abetting (ECF Nos. 62, 63). In February 2017, Defendant was sentenced to forty-two months imprisonment (ECF No. 105). Defendant filed an appeal of her conviction and sentence (ECF No. 107), which is currently pending in the Eleventh Circuit Court of Appeals, Case No. 17-10569-B.
The district court lacks jurisdiction to consider and rule on a § 2255 motion during the pendency of the direct appeal. United States v. Dunham, 240 F.3d 1328, 1329-30 (11th Cir. 2001); United States v. Diveroli, 729 F.3d 1339, 1341 (11th Cir. 2013) ("When an appeal is filed, the district court is divested of jurisdiction to take any action with regard to the matter except in aid of the appeal.") (quoting Shewchun v. United States, 797 F.2d 941, 942 (11th Cir. 1986) (internal quotation marks omitted)). Therefore, Defendant's motion should be dismissed.
Accordingly, it is respectfully RECOMMENDED that:
Defendant's motion (ECF No. 134) be DISMISSED without prejudice for lack of jurisdiction.
At Pensacola, Florida, this 5th day of May 2017.
/s/ Elizabeth M. Timothy
ELIZABETH M. TIMOTHY
CHIEF UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within fourteen (14) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only , and does not control. A copy of objections shall be served upon all other parties. If a party fails to object to the magistrate judge's findings or recommendations as to any particular claim or issue contained in a report and recommendation, that party waives the right to challenge on appeal the district court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.