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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BRUNO MANUEL GONZALEZGARCIA,§

§

 Movant,

§

§

§ No. 3:22-cv-01383-M (BT)

v. § No. 3:20-cr-00455-M-1

§

UNITED STATES OF AMERICA,

 Respondent.

§

§

§

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Bruno Manuel Gonzalez-Garcia, a state prisoner, has filed a pro se

motion to vacate, set-aside, or correct sentence under 28 U.S.C. § 2255. (ECF 

No. 3.) The District Court referred the resulting action to the United States 

magistrate judge pursuant to 28 U.S.C. 636(b) and a standing order of 

reference. For the following reasons, the District Court should dismiss 

Gonzalez-Garcia’s § 2255 motion without prejudice. 

I.

This action was initiated on May 28, 2022, when Gonzalez-Garcia 

filed a pro se motion in his federal criminal case. (ECF No. 3.) In his motion, 

he argues that he “did not properly understand or [sic] did [his] appointed 

attorney explain the proper sentencing guidelines to [him] in laymen’s terms 

were [sic] [he] could properly understand.” Id. Gonzalez-Garcia further 

argues that “[t]he question’s [sic] directed to [him] were answered with the 

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intention of [his] appointed attorney would provide [him] with effective 

Assistance of Counsel[.]” Id. The District Court liberally construed the 

motion, in part, as a § 2255 motion, and opened this civil habeas action. 

(ECF No. 2.) However, Gonzalez-Garcia is currently in the custody of the 

Texas Department of Criminal Justice (TDCJ), and his federal criminal case 

is pending before the Fifth Circuit Court of Appeals. See 

https://inmate.tdcj.texas.gov/InmateSearch/search.action (last visited 

June 29, 2022). 

“[A] criminal defendant may not collaterally attack his conviction 

until it has been affirmed on direct appeal.” Fassler v. United States, 858 

F.2d 1016, 1019 (5th Cir. 1988) (citing Jones v. United States, 453 F.2d 351, 

352 (5th Cir. 1972)); see also United States v. Puente, 2009 WL 762392, at 

*1 (N.D. Tex. Feb. 27, 2009) (finding the § 2255 motion was filed while the 

criminal case was pending on appeal and concluding “[i]t plainly appears 

from the face of the motion and the record of prior proceedings that 

defendant is not entitled to post-conviction relief at this time”), rec. adopted, 

2009 WL 762390 (N.D. Tex. Mar. 23, 2009); Canales v. United States, 2007 

WL 646189 at * 1 (N.D. Tex. Feb. 28, 2007) (a defendant may not seek postconviction relief while his direct appeal is pending); United States v. 

Norwood, 2006 WL 3350207, at *1 (N.D. Tex. Nov. 15, 2006) (dismissing 

the § 2255 motion as “premature” where the direct appeal was pending);

Risby v. Wendt, 2004 WL 828067 at *5 (N.D. Tex. Apr. 15, 2004)

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(construing application for writ of habeas corpus as a § 2255 motion and 

dismissing the case without prejudice because the underlying criminal 

conviction was on appeal), rec. adopted, 2004 WL 937013 (N.D. Tex. 

Apr.29, 2004). The orderly administration of criminal law generally 

precludes a court from considering a § 2255 motion when an appeal is 

pending in the criminal case. Woollard v. United States, 416 F.2d 50, 51 (5th 

Cir. 1968). When a movant files a § 2255 motion while his criminal case is 

on direct appeal, the Court should dismiss his § 2255 motion without 

prejudice to refiling it after the resolution of his direct appeal. See United

States v. Fantozzi, 90 F. App'x 73, 74 (5th Cir. 2004) (per curiam). 

Gonzalez-Garcia’s federal criminal case is presently on appeal in the 

Fifth Circuit. The Court therefore has no subject matter jurisdiction over his 

§ 2255 motion. See Canales, 2007 WL 646189, at *1. Consequently, the 

Court should dismiss his § 2255 motion without prejudice. 

II.

The Court recommends that this action be DISMISSED without 

prejudice. 

SO RECOMMENDED.

Signed July 11, 2022.

______________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report and recommendation must file specific written objections within 

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. 

P. 72(b). In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the basis for 

the objection, and specify the place in the magistrate judge's report and 

recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific. Failure to file specific written objections will 

bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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