Miller v. United States of America (INMATE 3)

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION DEAMPRET LEON MILLER, ) ) Petitioner, ) ) v. ) CASE NO. 1:20-CV-194-WKW ) [WO] UNITED STATES OF AMERICA, ) ) Respondent. )

ORDER

Before the court is the Government’s Motion to Dismiss Petitioner Deampret Leon Miller’s § 2255 Motion Without Prejudice. (CIV Doc. # 10.)1 As explained below, the Government’s Motion to Dismiss will be granted, and Mr. Miller’s § 2255 motion will be dismissed without prejudice. On March 11, 2020, the court sentenced Mr. Miller to 180 months in prison on his conviction for possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Just over a week later, on March 19, 2020, Mr. Miller filed a motion with this court seeking relief under 28 U.S.C. § 2255 based on the alleged ineffective assistance of his trial counsel. (CIV Doc. # 1.) The court entered an

1 References to document numbers assigned by the Clerk in this civil action are designated as “CIV Doc. #.” References to document numbers assigned by the Clerk in the underlying criminal case, No. 1:17-CR-11-WKW, are designated as “CR Doc. #.” order directing the Government to respond to Mr. Miller’s § 2255 motion. (CIV Doc. # 2.)

On April 16, 2020, before the Government responded to the § 2255 motion, Mr. Miller filed a motion in his criminal case seeking leave to file an out-of-time notice of appeal from his conviction and sentence. (CR Doc. # 186.) On April 24,

2020, the court granted Mr. Miller’s motion for leave to file an out-of-time notice of appeal. (CR Doc. # 189; [CIV Doc. # 10-1].) On the same day, Mr. Miller filed a notice of appeal. (CR Doc. # 191; [CIV Doc. # 10-2].) Thereafter, Mr. Miller’s appeal was docketed with the Eleventh Circuit, and his appeal now is pending in that

court. See United States v. Miller, No. # 20-11558 (11th Cir. Apr 24, 2020). In its Motion to Dismiss, the Government argues that the pendency of Mr. Miller’s direct appeal deprives the court of jurisdiction over his § 2255 motion and

that this court should dismiss the § 2255 motion without prejudice. (CIV Doc. # 10 at 3–4.) The Government’s argument is well taken. A district court lacks jurisdiction over a petitioner’s § 2255 motion during the pendency of the petitioner’s direct appeal. United States v. Khoury, 901 F.2d 975, 976 (11th Cir. 1990); see also

United States v. Casaran-Rivas, 311 F. App’x 269, 272 (11th Cir. 2009) (“[A]bsent 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. . . . [T]he district court should have dismissed [the] . . . motion as premature.”).

Because Mr. Miller’s direct appeal is pending in the Eleventh Circuit, the court lacks jurisdiction to consider his § 2255. Accordingly, it is ORDERED as follows:

(1) The Government’s Motion to Dismiss Petitioner Miller’s § 2255 Motion Without Prejudice (CIV Doc. # 10) is GRANTED; and (2) Mr. Miller’s § 2255 motion (CIV Doc. # 1) is DISMISSED WITHOUT PREJUDICE.

Mr. Miller may refile his § 2255 motion upon the conclusion of proceedings in his direct appeal. A final judgment will be entered separately.

DONE this 12th day of May, 2020. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE