Final Report and Recommendation — Keith Anthony Jackson v. United States, No. 1:10-CR-240-TCB-GGB (Dkt. 74, N.D. Ga.)
Summary
U.S. Magistrate Judge Gerrilyn G. Brill recommended on May 22, 2012 that Keith Anthony Jackson's motion to vacate under 28 U.S.C. § 2255 be denied in Jackson v. United States (N.D. Ga., Criminal No. 1:10-CR-240-TCB-GGB). Jackson, an inmate at the Robert A. Deyton Detention Center in Lovejoy, Georgia, challenged the 61-month sentence imposed on January 6, 2012 after a guilty plea on April 21, 2011. Because Jackson's direct appeal was pending in the Eleventh Circuit and no extraordinary circumstances were shown, the report finds the court lacks jurisdiction to consider a § 2255 motion. It recommends denying the § 2255 motion, the amended motion and a motion to amend the presentence investigation report, and denying a certificate of appealability.
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
KEITH ANTHONY JACKSON, : MOTION TO VACATE
Movant, : 28 U.S.C. § 2255
:
v. : CRIMINAL ACTION NO.
: 1:10-CR-240-TCB-GGB
UNITED STATES, :
Respondent. : CIVIL ACTION NO.
: 1:12-CV-0877-TCB-GGB
FINAL REPORT AND RECOMMENDATION
Movant, Keith Anthony Jackson, an inmate at the Robert A. Deyton Detention
Center in Lovejoy, Georgia, seeks via 28 U.S.C. § 2255 to challenge the
constitutionality of his 61-month sentence that was imposed on January 6, 2012,
following the entry of his guilty plea on April 21, 2011. [Docs. 31, 45]. Movant has
also filed an amendment to his § 2255 motion [Doc. 70] and a motion to amend his
presentence investigation report [Doc. 73].
Movant currently has an appeal of his conviction pending in the United States
Court of Appeals for the Eleventh Circuit. [Docs. 58, 65]. As such, this Court lacks
jurisdiction to consider a § 2255 motion at this time. See 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
AO 72A
(Rev.8/82)
circumstances, a defendant may not seek collateral relief while his direct appeal is
pending. See United States v. Casaran-Rivas, 311 F. App’x 269, 272 (11th Cir.
2009); Fernandez v. United States, 941 F.2d 1488, 1491 (11th Cir. 1990). Movant
has not presented any extraordinary circumstances justifying immediate review.
Accordingly, I recommend that the § 2255 motion and amended § 2255 motion be
denied. I also recommend that Movant’s motion to amend his presentence
investigation report [Doc. 73] be denied, because Movant’s appeal divests this Court
of jurisdiction to correct his presentence investigation report. See, e.g., Shewchun v.
United States, 797 F.2d 941, 942-43 (11th Cir. 1986).
Under 28 U.S.C. § 2253(c)(2), a certificate of appealability shall not issue
unless “the applicant has made a substantial showing of the denial of a constitutional
right.” Here, Movant has not made a showing of the denial of a constitutional right,
because he may not file a § 2255 motion while a direct appeal is pending. Thus, the
I recommend that a certificate of appealability be DENIED.
Conclusion
Based on the foregoing, IT IS RECOMMENDED that Movant’s § 2255
motion [Doc. 68], amended § 2255 motion [Doc. 70], and motion to amend his
presentence investigation report [Doc. 73] be DENIED.
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IT IS FURTHER RECOMMENDED that a certificate of appealability be
DENIED.
The Clerk is DIRECTED to terminate the referral to me.
IT IS SO RECOMMENDED this 22nd day of May, 2012.
GERRILYN G. BRILL
UNITED STATES MAGISTRATE JUDGE
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