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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case Nos. 3:20cr40/TKW/MAF

3:22cv8280/TKW/MAF

DEMONTE EASLEY

ORDER, REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s “Motion Under 28 

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in 

Federal Custody.” ECF No. 550. After review of the record, the court 

concludes that the motion should be dismissed without prejudice to its 

reassertion, if appropriate, upon the conclusion of Defendant’s direct appeal. 

Defendant was sentenced to a term of 360 months’ imprisonment after 

his conviction on drug trafficking charges. Judgment was entered on 

August 3, 2021. ECF No. 404. Defendant, through counsel, timely filed a 

notice of appeal. ECF No. 407. Counsel moved to withdraw, and the court 

appointed Sheryl Joyce Lowenthal, Esq. to represent Defendant. ECF No. 

431. Defendant states on the § 2255 form that he did not file an appeal. 

ECF No. 550 at 2. However, the undersigned has confirmed that 
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Case Nos.: 3:20cr40/TKW/MAF; 3:20cv8280/TKW/MAF

Defendant’s appeal, assigned Eleventh Circuit Case 21-12695, remains 

pending. The last docket entry in that case is an order dated June 7, 2022 

granting Defendant/Appellant an additional thirty days to file a response to 

appellate counsel’s Anders brief and motion to withdraw as counsel. 

Because Defendant’s judgment and conviction are not final, this court 

lacks jurisdiction to consider and rule on the § 2255 motion, or to “take any 

action with regard to the matter except in aid of the appeal.” United States 

v. Diveroli, 729 F. 3d 1339, 1342 (11th Cir. 2013) (citation omitted); United 

States v. Dunham, 240 F.3d 1328, 1329-30 (11th Cir. 2001); United States 

v. Khoury, 901 F. 2d 975, 976 (11th Cir. 1990); Blair v. United States, 527 F. 

App’x 838, 839 (11th Cir. 2013) (“[i]n the absence of extraordinary 

circumstances, a district court does not have jurisdiction to consider or rule 

on a § 2255 motion during the pendency of a direct appeal of the underlying 

criminal conviction or sentence.”); Welsh v. United States, 404 F.2d 333 (5th 

Cir. 1968) (“[a] motion to vacate sentence under 28 U.S.C. § 2255 will not be 

entertained during the pendency of a direct appeal, inasmuch as the 

disposition of the appeal may render the motion moot.”) The instant motion 
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Case Nos.: 3:20cr40/TKW/MAF; 3:20cv8280/TKW/MAF

should be dismissed without prejudice to its reassertion, if appropriate, after 

Defendant’s pursuit of direct review has concluded.1

Defendant has also filed a motion to proceed in forma pauperis. ECF 

No. 551. Even if Defendant’s § 2255 motion were not subject to dismissal, 

no filing fee is required for motions filed pursuant to 28 U.S.C. § 2255. 

Therefore, Defendant’s motion is denied as moot.

Accordingly, it is ORDERED:

Defendant’s motion for leave to proceed in forma pauperis (ECF No. 

551) is DENIED. 

And, it is respectfully RECOMMENDED:

The motion to vacate, set aside or correct sentence pursuant to 28 

U.S.C. § 2255 (ECF No. 550) be DISMISSED without prejudice. 

At Tallahassee, Florida, this 16th day of June, 2022.

 s/ Martin A. Fitzpatrick 

MARTIN A. FITZPATRICK

UNITED STATES MAGISTRATE JUDGE

1Defendant is advised that dismissal of the instant motion will not prevent him from later 

seeking collateral review if his direct appeal is unsuccessful. He will be constrained only 

by the limitations period set forth in 28 U.S.C. § 2255.
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Case Nos.: 3:20cr40/TKW/MAF; 3:20cv8280/TKW/MAF

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations 

must be filed within fourteen (14) days after being served a copy 

thereof. Any different deadline that may appear on the electronic 

docket is for the court’s internal use only, and does not control. A 

copy of objections shall be served upon all other parties. If a party 

fails to object to the magistrate judge's findings or recommendations 

as to any particular claim or issue contained in a report and 

recommendation, that party waives the right to challenge on appeal the 

district court's order based on the unobjected-to factual and legal 

conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.