United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE
James filed a petition under 28 U.S.C. § 2254 to
challenge a jury verdict in federal court, for which he has
not yet been sentenced. See United States v. Calvin
James, No. CR418-205. As an initial matter, § 2254
is not the proper vehicle through which he can challenge a
federal conviction. James must proceed instead via
28 U.S.C. § 2255. The Court thus must reconstrue
James' 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, he will lose his ability to file any successive
petition on this same matter without first seeking permission
to do so from the Eleventh Circuit. James, however, has not
yet been sentenced. Any such motion would be necessarily
denied without prejudice as premature, thus obviating the
need for a Castro warning.
§ 2255 motion cannot be filed until a direct appeal is
first exhausted. See Liebman & Hertz, 2 Fed.
Habeas Corpus Prac. & Proc. § 41.4a at 1197
(“The federal courts have essentially engrafted an
exhaustion of appellate remedies requirement onto section
2255. . . .”); United States v. Casaran-Rivas,
311 Fed.Appx. 269, 273 (11th Cir. 2009) (§ 2255 is
“intended to afford strictly post-conviction
relief.”) (emphasis added) (citing 28 U.S.C.
§§ 2255(a), (f)). Collateral relief and
direct-appeal relief cannot be pursued simultaneously,
however, 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.”). “To this end, the
record includes no reason to conclude that [James'] case
presents extraordinary circumstances that render this
reasoning inapplicable.” Casaran-Rivas, 311
Fed.Appx. at 273. A § 2255 motion here would be markedly
Calvin James' § 2254 motion, reconstrued in the only
way it can be as a § 2255 motion, should be
DISMISSED without prejudice
to refile when his case becomes final. Applying the
Certificate of Appealability (COA) standards set forth in
Brown v. United States, 2009 WL 307872 at * 1-2
(S.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy
issues at this stage of the litigation, so no COA should
issue either. 28 U.S.C. § 2253(c)(1); Rule 11(a) of the
Rules Governing Habeas Corpus Cases Under 28 U.S.C. §
2254 (“The district court must issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant”) (emphasis added).
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 sentencing and
after resolution of his direct appeal, that
subsequent § 2255 motion would not be a second or
 Although a defendant theoretically can
forego his direct appeal in favor of a § 2255 motion,
Sosa v. United States, 550 F.2d 244, 246 (5th Cir.
1977), defendants are routinely instructed not to use §
2255 as a surrogate for a direct appeal. See, e.g.,
McCleese v. United States, 75 F.3d 1174, 1177 (7th
Cir.1996) (“A § 2255 motion is ‘neither a
recapitulation of nor a substitute for a direct
appeal'”) (emphasis added) (quoting Belford v.
United States, 975 F.2d 310, 313 (7th Cir. 1992)).
Indeed, waiving direct appeal can bar issues ...