United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
convicted for possession of a firearm as armed career
criminal, doc. 31 (plea agreement), Everol Palmer was
sentenced to 180 months' imprisonment. See doc.
34 (sentencing memorandum); doc. 37 (judgment). His appeal is
pending. Doc. 41; see Palmer v. United States,
17-15718 (11th Circuit). He has now filed a motion for
reconsideration of his presentence investigative report
(PSR), disputing that it sufficiently established he had a
“serious drug offense” within the meaning of the
Armed Career Criminal Act and also alleging that counsel was
deficient for failing to file an appeal as directed. Doc. 48.
As an initial matter, an appeal was filed, patently
mooting Palmer's ineffective assistance of counsel
argument as set forth in the motion. As to his other
allegations, it appears that Palmer is not seeking
reconsideration -- he is seeking to vacate the armed career
criminal enhancement on his sentence.
Court thus must reconstrue Palmer's motion as a §
2255 motion to vacate his sentence. Normally, such
reconstrual requires a Castro warning that if he
chooses to proceed with his motion, Palmer will lose his
ability to file any successive petition on this same matter
without first seeking permission to do so from the Eleventh
Circuit. However, Palmer's appeal is yet pending, which
means there remains a chance that he may yet secure from the
Court of Appeals the exact relief he seeks here (the vacatur
of his sentence).
2255 habeas motions are “intended to afford strictly
post-conviction relief.” See United States v.
Casaran-Rivas, 311 Fed.Appx. 269, 273 (11th Cir. 2009)
(citing 28 U.S.C. §§ 2255(a), (f)). Collateral
relief and direct-appeal relief cannot be pursued
simultaneously, as “the disposition of a direct appeal
might render a habeas motion unnecessary.” Id.
(citing United States v. Khory, 901 F.2d 975, 975
(11th Cir. 1990) (absent 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)); see also Kapral v.
United States, 166 F.3d 565, 570 (3rd Cir. 1999)
(“a collateral attack is generally inappropriate if the
possibility of further direct review remains open.”);
Welsh v. United States, 404 F.2d 333 (5th Cir. 1968)
(a § 2255 motion “will not be entertained during
the pendency of a direct appeal, inasmuch as the disposition
of the appeal may render the motion moot.”); Jack
v. United States, 435 F.2d 317, 318 (9th Cir. 1970)
(“[e]xcept under most unusual circumstances, not here
present, no defendant in a federal criminal prosecution is
entitled to have a direct appeal and a § 2255 proceeding
considered simultaneously in an effort to overturn the
conviction and sentence.”).
this end, the record includes no reason to conclude that
[Palmer's] case presents extraordinary circumstances that
render this reasoning inapplicable.”
Casaran-Rivas, 311 Fed.Appx. at 273. His reconstrued
§ 2255 motion should thus be DISMISSED
without prejudice to his refiling his motion (after
his appeal has been decided) as premature.
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. U.S., 612 Fed.Appx. 542, 545
(11th Cir. 2015).
 See Castro v. United States,
540 U.S. 375, 383 (2003) (“the district court must
notify the pro se litigant that it intends to recharacterize
the pleading [as a § 2255 motion], warn the litigant
that this recharacterization means that any subsequent §
2255 motion will be subject to the restrictions on
‘second or successive' motions, and provide the
litigant an opportunity to withdraw the motion or to amend it
so that it contains all the § 2255 claims he believes he
has.”); Pena v. United States, 2016 WL 6609223
at * 1 (S.D. Ga. Sept. 28, 2016).
 Meaning, should movant decide to
pursue collateral relief after resolution of his
direct appeal, that subsequent § 2255 motion would not
be considered second or successive. Dismissal is thus
appropriate at this stage, rather than providing a futile