VITA v. U.S.

Full title: JOSE VITA v. UNITED STATES OF AMERICA

Court: United States District Court, M.D. Florida, Fort Myers Division

Date published: Aug 23, 2006

Case No. 2:06-cv-408-FtM-33SPC (M.D. Fla. Aug. 23, 2006)

Opinion

Case No. 2:06-cv-408-FtM-33SPC.

August 23, 2006

ORDER

VIRGINIA COVINGTON, District Judge

This cause comes before the Court pursuant to Vita's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (Doc. #1) and Motion for Suggestion to the Court of Appeals for Grant of Section 2255 Petition on Remand (Doc. #3-1). Both motions were filed on August 11, 2006.

In support of his § 2255 motion, Vita argues ineffective assistance of counsel. Namely, Vita asserts that his counsel failed to inform Vita that "Vita could plead guilty to the indictment and that if he did not do so, an enhancement under 21 U.S.C. § 851 would soon be filed." (Doc. #593-1 at 3.)

Currently, Vita has an appeal pending before the Eleventh Circuit. As such, this Court lacks jurisdiction to consider Vita's § 2255 motion at this time. United States v. Dunham, 240 F.3d 1328, 1329-1330 (11th Cir. 2001) (district court lacked jurisdiction over § 2255 motion during the pendency of direct appeal). Absent extraordinary circumstances, a defendant may not seek collateral relief while his direct appeal is pending.Fernandez v. United States, 941 F.2d 1488, 1491 (11th Cir. 1990); United States v. Khoury, 901 F.2d 975, 976 (11th Cir.), modified, 910 F.2d 713 (11th Cir. 1990).

In apparent recognition of the jurisdictional roadblock, Vita filed a motion requesting that the Court, pursuant to the procedure established in United States v. Ellsworth, 814 F.2d 613 (11th Cir. 1987), certify to the Eleventh Circuit that a remand for § 2255 proceedings is warranted in this case. (Doc. #3-1.) The decision to certify that "it will hear the motion is within a court's discretion." United States v. Williamson, 792 F. Supp. 805, 807 (11th Cir. 1992). On the present facts, the Court will not so certify.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

1. The Motion for Suggestion to the Court of Appeals for Grant of Section 2255 Petition on Remand (Doc. #3-1) is DENIED.

2. The Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (Doc. #1) is DENIED without prejudice for lack of jurisdiction. The Clerk is directed to close the case.

3. The Clerk is further directed to docket a copy of this order in the underlying criminal case, 2:05-cr-5-FtM-33-33SPC.

DONE and ORDERED.