United States District Court, S.D. Georgia, Savannah Division
CALVIN B. JAMES, Plaintiff,
UNITED STATES MARSHALLS, Defendant.
REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.
Calvin James has once again inexplicably refused to submit
this Court's form motion to proceed in forma
pauperis (IFP). Doc. 3; see doc. 2 (notifying
James of his filing fee deficiency and providing him with a
copy of the Court's prisoner IFP form); c.f., James
v. District Court, CV419-031, doc. 14 (dismissed for
failure to comply with a Court order, based on James
inexplicable, willful refusal to utilize the Court's
standard IFP form); James v. Gammon, CV418-307, doc.
“petition for writ of habeas corpus” filed
pursuant to 28 U.S.C. § 2254 - though challenging a
federal sentence, see United States v.
James, CR418-205 - James yet again has refused to
utilize the Court's standard IFP form. In lieu of
complying, James filed his own handwritten version. Doc. 3.
In it, again, he fails to set forth the information required
by the Court's form that has been repeatedly provided to
him, explaining that “if [he is] required to pay costs
of this [he] will not be able to prosecute [his] case due to
lack of funds.” Id. at 1. He further specifies
that he is submitting his handwritten version in support of a
“habeas petition, ” perhaps hoping that absolves
him of the need to use this Court's forms - while, it
must be noted, using this Court's standard § 2254
form. This ongoing refusal to abide the Court's directive
on the IFP form is, simply put, flabbergasting.
given his professed indigency, the Court
GRANTS James' IFP motion (doc. 3) for
the purposes of Preliminary review under Rule 4 of the Rules
Governing Section 2254 Cases. That review shows that his
petition must be dismissed. As noted above, James is
challenging a federal conviction and sentence
through 28 U.S.C. § 2254. Compare doc. 1 at 1
(listing a “120 months” sentence for
“possession of a firearm” imposed on April 8,
2019, in criminal case “CR418-205” in the
“United States District Court for the Southern District
of Georgia”) with James, CR418-205, doc. 67
(judgment for 120 months' imprisonment for possession of
a firearm as a felon, imposed on April 9, 2019).
2254 petitions, however, apply to prisoners seeking relief
from state court convictions; 28 U.S.C. § 2255
motions apply to prisoners seeking to vacate or set aside the
judgment of a federal court. Consequently, the Court must
construe James' § 2254 petition as a motion brought
pursuant to § 2255. As James' federal conviction and
sentence are currently on direct appeal before the Eleventh
Circuit, United States v. James, No. 19-11549-K
(11th Cir. filed Apr. 23, 2019), his § 2255 motion
should be dismissed as premature.
extraordinary circumstances, a defendant may not seek
collateral relief while his direct appeal is pending, as the
appeal may render the motion moot. United States v.
Khoury, 901 F.2d 948, 969 n. 20 (11th Cir.1990) (§
2255 motion will not be entertained during pendency of a
direct appeal); 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.”). Indeed, this Court is
without jurisdiction to consider such claims. United
States v. Dunham, 240 F.3d 1328, 1329-30 (11th
this end, the record includes no reason to conclude that
[James'] case presents extraordinary circumstances that
render this reasoning inapplicable.” United States
v. Casaran-Rivas, 311 Fed.Appx. 269, 273 (11th Cir.
2009). His § 2255 motion should be
DISMISSED without prejudice as
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. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).
 Meaning, should movant decide to
pursue collateral relief after resolution of his
direct appeal, that subsequent § 2255 motion would not